DEFENSES

PLAINTIFF’S OWN NEGLIGENCEInPaulan vs. Sarabia, 16 this Court ruled that in an action for damages arising from the collision of two (2) trucks, the action being based on a quasi-delict, the four (4) year prescriptive period must be counted from the day of the collision.Paulan v. Sarabia, supra,"theinstitution of a criminal action cannot have the effect of interrupting theinstitution of a civil action based on aquasi-delict."As to whether or not Rule 111, Section 2, of the Revised Rules of Court whichrequires the reservation of the right to institute a separate and independent civilaction in the cases provided for in Articles 31, 32, 33, 34, and 2177 of the CivilCode affects the question of prescription, we do not now decide. The said ruledoes not apply in the present casePaulan v. Sarabia, supra, "the institution of a criminal action cannot have the effect of interrupting the institution of a civil action based on a quasi-delict. " As to whether or not Rule 111, Section 2, of the Revised Rules of Court which requires the reservation of the right to institute a separate and independent civil action in the cases provided for in Articles 31, 32, 33, 34, and 2177 of the Civil Code affects the question of prescription, we do not now decide. The said rule does not apply in the present case

Republic of the PhilippinesSupreme CourtManila   LASAM VS RAMOLETE  D E C I S I O N  

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-

Lasam (petitioner) seeking to annul the Decision[1] dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.

 

The antecedent facts:

On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to

the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding.Upon advice of petitioner

relayed via telephone, Editha was admitted to the LMC on the same day. A pelvic sonogram[2] was then conducted

on Editha revealing the fetus weak cardiac pulsation.[3] The following day, Edithas repeat pelvic sonogram[4] showed that

aside from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal

bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or raspa.

 

On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following

day.

 On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe

abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo

allegedly informed Editha that there was a dead fetus in the latters womb. After, Editha underwent laparotomy,[5] she was

found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for

hysterectomy[6] and as a result, she has no more chance to bear a child.

 

On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint[7] for Gross

Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC).

 

Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and

professional incompetence in conducting the D&C procedure and the petitioners failure to remove the fetus

inside Edithas womb.[8] Among the alleged acts of negligence were: first, petitioners failure to check up, visit or administer

medication on Editha during her first day of confinement at the LMC;[9] second, petitioner recommended that a D&C

procedure be performed on Editha without conducting any internal examination prior to the procedure;[10] third, petitioner

immediately suggested a D&C procedure instead of closely monitoring the state of pregnancy of Editha.[11]

 

In her Answer,[12] petitioner denied the allegations of negligence and incompetence with the following explanations:

upon Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to

anticipate the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses

carried out; petitioner visitedEditha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an

internal examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed the

possible D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal

examination on Editha, which revealed that the latters cervix was still open; Editha persistently complained of her vaginal

bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner

advised Editha to undergo D&C procedure which the respondents consented to; petitioner was very vocal in the operating

room about not being able to see an abortus;[13] taking the words ofEditha to mean that she was passing out some meaty

mass and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it

was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for check-up

on August 5, 1994, which the latter failed to do.

Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994

against doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-

threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very abnormal

pregnancy known as placentaincreta, which was an extremely rare and very unusual case of abdominal placental

implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor, there would be

no difference at all because at any stage of gestation before term, the uterus would rupture just the same.

 

On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision,[14] exonerating petitioner from the

charges filed against her. The Board held:

 Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the

uterine muscles and manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases. When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus.Therefore, a more extensive operation needed in this case of pregnancy in order to remove the fetus.[15]

 

Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a

Decision[16] reversing the findings of the Board and revoking petitioners authority or license to practice her profession as a

physician.[17]

Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also

dubbed her petition as one for certiorari[18] under Rule 65 of the Rules of Court.

 

In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was

an improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.[19] PRC is not among the

quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for

review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a

petition for certiorari under Rule 65, the same would still be dismissed for being improper and premature. Citing Section

26[20] of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy

under the ordinary course of law which petitioner should have availed herself of was to appeal to the Office of the President.[21]

 

Hence, herein petition, assailing the decision of the CA on the following grounds: 

1.                                      THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;

 2.                                      EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE

PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT NULLITY;

 3.                                      HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL

FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION;

 

4.                                      THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER;

 5.                                      PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE

HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID;

 6.                                      COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE

ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;

 7.                                      PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS

LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;

 8.                                      PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY

DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[AND]

 9.                  PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS

THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.[22]

 

The Court will first deal with the procedural issues.

 

Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes

Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides: 

Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the Decision of the Board within the same period. (Emphasis supplied)

 

Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right,

may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the

Board only when so allowed by law.[23] Petitioner cited Section 26 of Republic Act No. 2382 or The Medical Act of 1959, to

wit: Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari.

 

Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case

to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the

belief that the revocation of license to practice a profession is penal in nature.[24]

 

The Court does not agree.

 

For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1)

upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and

(5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express

consent of the accused.[25] These elements were not present in the proceedings before the Board of Medicine, as the

proceedings involved in the instant case were administrative and not criminal in nature. The Court has already held that

double jeopardy does not lie in administrative cases.[26]

 

Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by

petitioner was subsequently amended to read:

 Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory.Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of 1990).[27] (Emphasis supplied)

 

Whatever doubt was created by the previous provision was settled with said amendment. It is

axiomatic that the right to appeal is not a natural right or a part of due process, but a mere statutory privilege

that may be exercised only in the manner prescribed by law.[28] In this case, the clear intent of the amendment

is to render the right to appeal from a decision of the Board available to both complainants and respondents.

 

Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New

Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional

Regulatory Boards, which provides for the method of appeal, to wit: Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief or memorandum on appeal, and paying the appeal and legal research fees. x x x[29]

 

The above-stated provision does not qualify whether only the complainant or respondent may file an appeal;

rather, the new rules provide that a party aggrieved may file a notice of appeal.Thus, either the complainant or the

respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an

elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of legislative

intent to the contrary, for any interpretation.[30] Words and phrases used in the statute should be given their plain, ordinary,

and common usage or meaning.[31]

 

Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43[32] of the Rules

of Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial

agencies.[33] Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just because it

is not mentioned therein.[34]

 

On this point, the Court agrees with the petitioner.

Sec. 1, Rule 43 of the Rules of Court provides: Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the

Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.(Emphasis supplied)

 

Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section

1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion

from the coverage of said Rule.[35] The Rule expressly provides that it should be applied to appeals from awards, judgments

final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase among

these agencies confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed.[36]

 

Specifically, the Court, in Yang v. Court of Appeals,[37] ruled that Batas Pambansa (B.P.) Blg. 129[38] conferred upon the CA

exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held: 

The law has since been changed, however, at least in the matter of the particular court to which appeals from the Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of Appeals exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x. In virtue of BP 129, appeals from the Professional

Regulations Commission are now exclusively cognizable by the Court of Appeals.[39] (Emphasis supplied)

 

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,[40] lodged with the CA

such jurisdiction over the appeals of decisions made by the PRC.

Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to

support its conclusion and to establish the cause of Edithas injury.Petitioner avers that in cases of medical malpractice,

expert testimony is necessary to support the conclusion as to the cause of the injury.[41]

 

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his

practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar

conditions, and in like surrounding circumstances.[42] In order to successfully pursue such a claim, a patient must prove that

the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have

done, and that the failure or action caused injury to the patient.[43]

There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.[44]

 

A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician,

petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a

condition under the same circumstances.[45] The breach of these professional duties of skill and care, or their improper

performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice.[46] As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert

testimony is essential.[47] Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable

only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the

conclusion as to causation.[48]

 

In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do

something which a reasonably prudent physician or surgeon would have done.

 

Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on

the subject.

 

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about

which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience.[49]

 

Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the

subject, and is a professor at the University of the Philippines.[50] According to him, his diagnosis of Edithas case

was Ectopic Pregnancy Interstitial (also referred to as Cornual), Ruptured.[51] In stating that the D&C procedure was not the

proximate cause of the rupture ofEdithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows: Atty. Hidalgo:Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was

the proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please tell us whether that is true or not?

A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while ago about another reason- well, why I dont think so, because it is the triggering factor for the rupture, it could havethe rupture could have occurred much earlier, right after the D&C or a few days after the D&C.

 Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the

hysterectomy or right upon admission on September 15, 1994 which is about 1 months after the patient was discharged, after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance?

A: I dont think so for the two reasons that I have just mentioned- that it would not be possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred earlier.[52] (Emphases supplied)

 

Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C

procedure was not the proximate cause of the rupture of Edithas uterus.

During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he

be placed in a similar circumstance as the petitioner. He stated: Atty. Ragonton:Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal

dilatation and curettage procedure?A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the

procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have some reservations, and wait a little more time.

 Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your

standard practice to check the fetal parts or fetal tissues that were allegedly removed?A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of

the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way.

 Q: There was [sic] some portions of the fetal parts that were removed?A: No, it was described as scanty scraping if I remember it rightscanty. Q: And you would not mind checking those scant or those little parts that were removed?A: Well, the fact that it was described means, I assume that it was checked, no. It was described as

scanty and the color also, I think was described. Because it would be very unusual, even improbable that it would not be examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you have to touch them. So, automatically they are examined closely.

Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone?

A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. That you have no idea what the problem is.

 Q: But, doctor, do you discharge patients without seeing them?A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone

orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, thats when I make this telephone orders. And, of course before giving that order I ask about how she feels.[53] (Emphases supplied)

 

From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard

practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same

circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha.

 

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176[54] of the

Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are: 

Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

 

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient

intervening cause, produces injury, and without which the result would not have occurred. [55] An injury or damage is

proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission

played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was

either a direct result or a reasonably probable consequence of the act or omission.[56]

 

In the present case, the Court notes the findings of the Board of Medicine: 

When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994 or four (4) days after the D&C. This advise was clear in complainants Discharge Sheet.However, complainant failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. Had she returned, the respondent could have examined her thoroughly.[57] x x x (Emphases supplied)

 

Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the

same would have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994.

Dr. Manalo stated: Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up evaluation. It was one and a half months later that the patient sought consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in physical findings could be expected in 1 months, including the emergence of suggestive ones.[58]

 

It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners

advise. Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission in

not returning for a follow-up evaluation played a substantial part in bringing about Edithas own

injury. Had Editha returned, petitioner could have conducted the proper medical tests and procedure necessary to

determine Edithas health condition and applied the corresponding treatment which could have prevented the rupture

of Edithas uterus. The D&C procedure having been conducted in accordance with the standard medical practice, it is clear

that Edithas omission was the proximate cause of her own injury and not merely a contributory negligence on her part.

 

Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person

injured, which, concurring with the defendants negligence, is the proximate cause of the injury.[59] Difficulty seems to be

apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident.[60] Where the

immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence

as one of its determining factors, he cannot recover damages for the injury.[61] Again, based on the evidence presented in

the present case under review, in which no negligence can be attributed to the petitioner, the immediate cause of

the accident resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in

defiance of petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover

damages from the injury.

Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents

or by the PRC that an appeal was pending before the PRC.[62] Petitioner claims that a verification with the records section of

the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not attach

the actual registry receipt but was merely indicated therein.[63]

Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal,

PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other

party.[64] Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel, because the

registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC.[65]

 

It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served

must prove the fact of service. The burden of proving notice rests upon the party asserting its existence.[66] In the present

case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal.  Thus,

respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal

proceedings before the PRC.

 

In EDI-Staffbuilders  International, Inc. v. National Labor Relations Commission,[67]  in which the National Labor

Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum,

the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which

could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The

Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to

the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void.

 

All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers

against mishaps or unusual consequences[68] specially so if the patient herself did not exercise the proper diligence required

to avoid the injury.

 

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-

GR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4,

1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs.

 

SO ORDERED.

FIRST DIVISION

G.R. No. 161151, March 24, 2014

BJDC CONSTRUCTION, REPRESENTED BY ITS MANAGER/PROPRIETOR JANET S. DELA CRUZ,Petitioner, v. NENA E. LANUZO, CLAUDETTE E. LANUZO, JANET E. LANUZO, JOAN BERNABE E. LANUZO, AND RYAN JOSE E. LANUZO, Respondents.

D E C I S I O N

BERSAMIN, J.:

The party alleging the negligence of the other as the cause of injury has the burden to establish the allegation with competent evidence. If the action based on negligence is civil in nature, the proof required is preponderance of evidence.

This case involves a claim for damages arising from the death of a motorcycle rider in a nighttime accident due to the supposed negligence of a construction company then undertaking re–blocking work on a national highway. The plaintiffs insisted that the accident happened because the construction company did not provide adequate lighting on the site, but the latter countered that the fatal accident was caused by the negligence of the motorcycle rider himself. The trial court decided in favor of the construction company, but the Court of Appeals (CA) reversed the decision and ruled for the plaintiffs.

Hence, this appeal.

Antecedents

On January 5, 1998, Nena E. Lanuzo (Nena) filed a complaint for damages1 against BJDC Construction (company), a single proprietorship engaged in the construction business under its Manager/Proprietor Janet S. de la Cruz. The company was the contractor of the re–blocking project to repair the damaged portion of one lane of the national highway at San Agustin, Pili, Camarines Sur from September 1997to November 1997.

Nena alleged that she was the surviving spouse of the late Balbino Los Baños Lanuzo (Balbino) who figured in the accident that transpired at the site of the re–blocking work at about 6:30 p.m. on October 30, 1997; that Balbino’s Honda motorcycle sideswiped the road barricade placed by the company in the right lane portion of the road, causing him to lose control of his motorcycle and to crash on the newly cemented road, resulting in his instant death; and that the company’s failure to place illuminated warning signs on the site of the project, especially during night time, was the proximate cause of the death of Balbino. She prayed that the company be held liable for damages, to wit: (a) P5,000.00 as the actual damage to Balbino’s motorcycle; (b) P100,000.00 as funeral and burial expenses; (c) P559,786.00 representing the “unearned income in expectancy” of Balbino; (d) P100,000.00 as moral damages; (e) P75,000.00 as attorney’s fees, plus P1,500.00 per court appearance; and (f) P20,000.00 as litigation costs and other incidental expenses.

In its answer,2 the company denied Nena’s allegations of negligence, insisting that it had installed warning signs and lights along the highway and on the barricades of the project; that at the time of the incident, the lights were working and switched on; that its project was duly inspected by the Department of Public Works and Highways (DPWH), the Office of the Mayor of Pili, and the Pili Municipal Police Station; and that it was

found to have satisfactorily taken measures to ensure the safety of motorists.

The company further alleged that since the start of the project in September 1997, it installed several warning signs, namely: (a) big overhead streamers containing the words SLOW DOWN ROAD UNDER REPAIR AHEAD hung approximately 100 meters before the re–blocking site, one facing the Pili–bound motorists and another facing the Naga–bound motorists; (b) road signs containing the words SLOW DOWN ROAD UNDER REPAIR 100 METERS AHEAD placed on the road shoulders below the streamers; (c) road signs with the words SLOW DOWN ROAD UNDER REPAIR 50 METERS AHEAD placed 50 meters before the project site; (d) barricades surrounded the affected portion of the highway, and a series of 50–watt light bulbs were installed and switched on daily from 6:00 p.m. until the following morning; (e) big warning signs containing the words SLOW DOWN ROAD UNDER REPAIR and SLOW DOWN MEN WORKING were displayed at both ends of the affected portion of the highway with illumination from two 50–watt bulbs from 6:00 p.m. until the following morning; and (f) the unaffected portion of the highway was temporarily widened in the adjacent road shoulder to allow two–way vehicular traffic.

The company insisted that the death of Balbino was an accident brought about by his own negligence, as confirmed by the police investigation report that stated, among others, that Balbino was not wearing any helmet at that time, and the accident occurred while Balbino was overtaking another motorcycle; and that the police report also stated that the road sign/barricade installed on the road had a light. Thus, it sought the dismissal of the complaint and prayed, by way of counterclaim, that the Nena be ordered to pay P100,000.00 as attorney’s fees, as well as moral damages to be proven in the course of trial.

The RTC subsequently directed the amendment of the complaint to include the children of Nena and Balbino as co–plaintiffs, namely: Janet, Claudette, Joan Bernabe and Ryan Jose, all surnamed Lanuzo. Hence, the plaintiffs are hereinafter be referred to as the Lanuzo heirs.

Decision of the RTC

On October 8, 2001, the RTC rendered judgment in favor of the company, as follows:chanRoblesvirtualLawlibrary

Plaintiffs are the survivors of Balbino Los Baños Lanuzo who met a traumatic death on 30 October, 1997 at about 6:30 p.m., when he bumped his motorcycle on a barricade that was lighted with an electric bulb, protecting from traffic the newly–reblocked cement road between San Agustin and San Jose, Pili, Camarines Sur; they claim defendant’s OMISSION in lighting up the barricaded portion of the reblocking project being undertaken by defendant was the proximate cause of the accident, leaving them bereaved and causing them actual and moral damages.

Defendant DENIED the claim of plaintiffs; both parties offered testimonial and documentary evidence, from which this Court,

FINDS

that: plaintiff DID NOT present an eyewitness account of the death of their decedent; on the contrary, the flagman of defendant was present when the accident occurred, which was caused by the decedent having overtaken a motorcycle ahead of [him] and on swerving, to avoid the barricade, hit it, instead, breaking the lighted electric bulb on top of the barricade, resulting in the fall of the decedent about 18 paces from where his motorcycle fell on the reblocked pavement; the police investigator, policeman Corporal, by Exh. 1, confirmed the tale of the flagman, aside from confirming the presence of the warning devices placed not only on the premises but at places calculated to warn motorists of the ongoing reblocking project.

OPINION

From the foregoing findings, it is the opinion of this Court that the plaintiffs were unable to make out a case for damages, with a preponderance of evidence.

WHEREFORE, Judgment is hereby rendered, DISMISSING the complaint. 3

Decision of the CA

The Lanuzo heirs appealed to the CA.

On August 11, 2003, the CA promulgated its decision declaring that the issue was whether the company had installed adequate lighting in the project so that motorists could clearly see the barricade placed on the newly cemented lane that was then still closed to vehicular traffic,4 thereby reversing the judgment of the RTC, and holding thusly:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the present appeal is hereby GRANTED and the decision appealed from in Civil Case No. P–2117 is hereby REVERSED and SET ASIDE. A new judgment is hereby entered ordering the defendant–appellee to pay the plaintiff–appellants, heirs of the victim Balbino L. B. Lanuzo, the sums of P50,000.00 as death indemnity, P20,000.00 by way of temperate damages and P939,736.50 as loss of earning capacity of the deceased Balbino L. B. Lanuzo.

SO ORDERED.5

The CA ruled that the following elements for the application of the doctrine of res ipsa loquitur were present, namely: (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant’s negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.

The CA regarded as self–serving the testimony of Eduardo Zamora, an employee of the company who testified that there was an electric bulb placed on top of the barricade on the area of the accident. It held that Zamora’s statement was negated by the statements of Ernesto Alto and Asuncion Sandia to the effect that they had passed by the area immediately before the accident and had seen the road to be dark and lit only by a gas lamp. It noted that SPO1 Corporal, the police investigator, had noticed the presence of lighted electric bulbs in the area, but the same had been installed on the other side of the street opposite the barricade.

The CA ruled that the placing of road signs and streamers alone did not prove that the electric bulbs were in fact switched on at the time of the accident as to sufficiently light up the newly re–blocked portion of the highway. It opined that “[t]he trial court gave undue weight to the self–serving statement of appellee’s employee, Eduardo Zamora, which was supposedly corroborated by SPO1 Pedro Corporal. SPO1 Corporal arrived at the scene only after the accident occurred, and thus the electric bulbs could have already been switched on by Zamora who was at the area of the project.” It concluded that the negligence of the company was the proximate cause of Balbino’s death; hence, the company was liable for damages.

The company filed a motion for reconsideration,6 but the CA denied the motion in the resolution promulgated on November 13, 2003.

Issues

In this appeal, the company submits the following issues, namely:chanRoblesvirtualLawlibrary

I. The application by the Honorable Court of Appeals of the doctrine of res ipsa loquiturto the case at bar, despite and contrary to the finding, among others, by the trial court that the proximate cause of the accident is the victim’s own negligence, is “not in accord with the law or with the applicable decisions of the Supreme Court” [Sec. 6 (a), Rule 45, Rules of Court].

II. The Honorable Court of Appeals, by substituting its own findings of fact and conclusion with those of the trial court despite the lack of “strong or cogent reasons” therefor, “has so far departed from the accepted and usual course of judicial proceedings ... as to call for an exercise of the power of supervision” by this Honorable Supreme Court [Sec. 6 (b), Ibid.].

III. The findings by the Honorable Court of Appeals that respondents (appellants therein) “had satisfactorily presented a prima facie case of negligence which the appellee (petitioner herein) had not overcome with an adequate explanation” and which alleged negligence is “the proximate cause of death of Lanuzo” are manifestations of grave abuse of discretion in the appreciation of facts, and constitute a judgment based on a misinterpretation of facts, which justify a review by this Honorable Supreme Court.7

The company reiterates the categorical finding of the RTC that the proximate cause of the accident was Balbino’s own negligence, and that such finding was based on the conclusion stated by SPO1 Corporal in his investigation report to the effect that the incident was “purely self accident,” and on the unrebutted testimony of Zamora to the effect that Balbino was driving his motorcycle at a fast speed trying to overtake another motorcycle rider before hitting the barricade. On the other hand, it insists that its documentary and testimonial evidence proved its exercise of due care and observance of the legally prescribed safety requirements for contractors.

The company maintains that Balbino was familiar with the re–blocking project that had been going on for months because he had been passing the area at least four times a day during weekdays in going to and from his place of work in the morning and in the afternoon; and that he could have avoided the accident had he exercised reasonable care and prudence.

The company assails the application of the doctrine of res ipsa loquitur, positing that the Lanuzo heirs did not establish all the requisites for the doctrine to apply.

Anent the first requisite, the company states that the Lanuzo heirs did not successfully counter its documentary and testimonial evidence showing that Balbino’s own negligence had caused the accident. It cites the fact that Balbino was familiar with the road conditions and the re–blocking project because he had been passing there daily; and that Balbino had been driving too fast and not wearing the required helmet for motorcycle drivers, which were immediately evident because he had been thrown from his motorcycle and had landed “18 paces away” from the barricade that he had hit.

On the second requisite, the company argues that Balbino’s driving and operation of his motorcycle on the day of the accident indicated that the accident was not within its exclusive management and control; and that as to the matters that were within its control, it sufficiently showed its observance of due and reasonable care and its compliance with the legally prescribed safety requirements.

Regarding the third requisite, the company reminds that Zamora and SPO1 Corporal revealed that Balbino was overtaking another motorcycle rider before hitting the barricade. The credibility of said witnesses was not challenged, and their testimonies not rebutted; hence, the CA erred in relying on the recollections of Asuncion Sandia and Ernesto Alto who were not present when the incident took place. Sandia and Alto’s testimonies could not be accorded more weight than Zamora’s eyewitness account, considering that the latter was believed by the trial judge who had the first–hand opportunity to observe the demeanor of the witnesses.

Whose negligence was the proximate cause of the death of Balbino?

Ruling of the Court

Inasmuch as the RTC and the CA arrived at conflicting findings of fact on who was the negligent party, the Court holds that an examination of the evidence of the parties needs to be undertaken to properly determine the issue.8 The Court must ascertain whose evidence was preponderant, for Section 1, Rule 133 of the Rules of Court mandates that in civil cases, like this one, the party having the burden of proof must establish his case

by a preponderance of evidence.9

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.10 It is basic that whoever alleges a fact has the burden of proving it because a mere allegation is not evidence.11 Generally, the party who denies has no burden to prove.12 In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on either side.13 The burden of proof is on the plaintiff if the defendant denies the factual allegations of the complaint in the manner required by the Rules of Court,but it may rest on the defendant if he admits expressly or impliedly the essential allegations but raises affirmative defense or defenses, which if proved, will exculpate him from liability.14

By preponderance of evidence, according to Raymundo v. Lunaria:15

x x x is meant that the evidence as a whole adduced by one side is superior to that of the other. It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of evidence” or “greater weight of the credible evidence.” It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.

In addition, according to United Airlines, Inc. v. Court of Appeals,16 the plaintiff must rely on the strength of his own evidence and not upon the weakness of the defendant’s.

Upon a review of the records, the Court affirms the findings of the RTC, and rules that the Lanuzo heirs, the parties carrying the burden of proof, did not establish by preponderance of evidence that the negligence on the part of the company was the proximate cause of the fatal accident of Balbino.

Negligence, the Court said in Layugan v. Intermediate Appellate Court,17 is “the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do,18 or as Judge Cooley defines it, ‘(t)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.’”19 In order that a party may be held liable for damages for any injury brought about by the negligence of another, the claimant must prove that the negligence was the immediate and proximate cause of the injury. Proximate cause is defined as “that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.”20

The test by which the existence of negligence in a particular case is determined is aptly stated in the leading case of Picart v. Smith,21 as follows:chanRoblesvirtualLawlibrary

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamiliasof the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculation cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of

this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against its consequences.

First of all, we note that the Lanuzo heirs argued in the trial and appellate courts that there was a total omission on the part of the company to place illuminated warning signs on the site of the project, especially during night time, in order to warn motorists of the project. They claim that the omission was the proximate cause of the death of Balbino.22 In this appeal, however, they contend that the negligence of the company consisted in its omission to put up adequate lighting and the required signs to warn motorists of the project, abandoning their previous argument of a total omission to illuminate the project site.

During the trial, the Lanuzo heirs attempted to prove inadequacy of illumination instead of the total omission of illumination. Their first witness was Cesar Palmero, who recalled that lights had been actually installed in the site of the project. The next witness was Ernesto Alto, who stated that he had seen three light bulbs installed in the site, placed at intervals along the stretch of the road covered by the project. Alto further stated that he had passed the site on board his tricycle on October 30, 1997 prior to the accident, and had seen only a gas lamp, not light bulbs, on his approach. Another witness of the plaintiffs, Asuncion Sandia, claimed that she had also passed the site on board a bus on the night just prior to the accident, and had seen the site to be dark, with only one lane open to traffic, with no light at all. Obviously, the witnesses of the plaintiffs were not consistent on their recollections of the significant detail of the illumination of the site.

In contrast, the company credibly refuted the allegation of inadequate illumination. Zamora, its flagman in the project, rendered an eyewitness account of the accident by stating that the site had been illuminated by light bulbs and gas lamps, and that Balbino had been in the process of overtaking another motorcycle rider at a fast speed when he hit the barricade placed on the newly cemented road. On his part, SPO1 Corporal, the police investigator who arrived at the scene of the accident on October 30, 1997, recalled that there were light bulbs on the other side of the barricade on the lane coming from Naga City; and that the light bulb on the lane where the accident had occurred was broken because it had been hit by the victim’s motorcycle. Witnesses Gerry Alejo and Engr. Victorino del Socorro remembered that light bulbs and gas lamps had been installed in the area of the project.

Secondly, the company presented as its documentary evidence the investigation report dated December 3, 1997 of SPO1 Corporal (Annex 1), the relevant portions of which indicated the finding of the police investigator on the presence of illumination at the project site, viz:chanRoblesvirtualLawlibrary

SUBJECT: Investigation Report Re: Homicide Thru Reckless Imprudence (Self Accident)

x x x x

II. MATTERS INVESTIGATED:chanRoblesvirtualLawlibrary

1. To determine how the incident happened.2. To determine the vehicle involved.

III. FACTS OF THE CASE:

3. At 6:45 P.M. October 30, 1997, Elements of Pili Municipal Police Station led by SPO2 Melchor Estallo, SPO2 Cesar Pillarda, both members of the patrol section and SPO1 Pedro D. Corporal, investigator reported having conducted an on the spot investigation re: vehicular incident (Self Accident) that happened on or about 6:30 o’clock in the evening of October 30, 1997 along national highway, San Agustin, Pili, Camarines Sur, wherein one Balbino Lanuzo y Doe, of legal age, married, a public school teacher, a resident of San Jose, Pili, Camarines Sur while driving his Honda motorcycle 110 CC enroute to San Jose, Pili, Camarines Sur from

Poblacion, this municipality and upon reaching at road re: blocking portion of the national highway at barangay San Agustin, Pili, Camarines Sur and while overtaking another motorcycle ahead incidentally side–swiped a road sign/barricade installed at the lane road re: blocking of the national highway, causing said motorcycle rider to swerved his ridden motorcycle to the right and stumble down and fell to the concrete cemented road. Victim was rushed to Bicol Medical Center, Naga City for treatment but was pronounced dead on arrival.

4. That upon arrival at the scene of the incident it was noted that road sign/barricade installed on the road has a light.

5. That said road was under repair for almost a month which one lane portion of the national highway is possible of all passing vehicles from south and north bound.

6. That said motorcycle stumble down on the newly repair portion of the national highway and the driver lying down beside the motorcycle.

x x x x

7. That one of the passerby revealed that the victim possibly be miscalculated the road block that made him to tumble down when he applied sudden brake.

IV. FINDINGS/DISCUSSION:chanRoblesvirtualLawlibrary

8. The time of the incident was at about 6:30 o’clock in the evening a time wherein dark of the night is approaching the vision of the driver is affected with the changing condition and it is all the time when driver should lights his driven vehicle, as to this case, the driver Balbino Lanuzo y Doe (victim has exercise all precautionary measures to avoid accident but due to self accident he incidentally sideswiped the road sign/barricade of the re: Blocking portion of the national highway resulting him to stumble down his motorcycle and fell down to the concrete cement road.

9. The driver/victim met unexpectedly (sic) along that one lane potion of the re: blocking and considering it was night time, confusion overthrew him and because of sudden impulse, he lost control on the motorcycle he was driving.

10. That the driver/victim has no crush (sic) helmet at the time of the incident considering that it should be a basic requirement as to prevent from any accident.

V. RECOMMENDATION:chanRoblesvirtualLawlibrary

11. Basing on the above discussion and facts surroundings the case was purely self accident resulting to Homicide Thru Reckless Imprudence and the case must be closed. (Emphasis ours.) 23

Additionally, the company submitted the application for lighting permit covering the project site (Annex 7) to prove the fact of installation of the electric light bulbs in the project site.

In our view, the RTC properly gave more weight to the testimonies of Zamora and SPO1 Corporal than to those of the witnesses for the Lanuzo heirs. There was justification for doing so, because the greater probability pertained to the former. Moreover, the trial court’s assessment of the credibility of the witnesses and of their testimonies is preferred to that of the appellate court’s because of the trial court’s unique first–hand opportunity to observe the witnesses and their demeanor as such. The Court said in Cang v. Cullen:24

The findings of the trial court on the credibility of witnesses are accorded great weight and respect – even considered as conclusive and binding on this Court – since the trial judge had the unique opportunity to observe the witness firsthand and note his demeanor, conduct and attitude under grueling examination. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh of a witness, or his scant or full realization of an oath – all of which are useful aids for an accurate determination of a witness' honesty and sincerity. He can thus be expected to determine with reasonable discretion which testimony is acceptable and which witness is worthy of belief.

Absent any showing that the trial court’s calibration of the credibility of the witnesses was flawed, we are bound by its assessment. This Court will sustain such findings unless it can be shown that the trial court ignored, overlooked, misunderstood, misappreciated, or misapplied substantial facts and circumstances, which, if considered, would materially affect the result of the case.25

The Court observes, too, that SPO1 Corporal, a veteran police officer detailed for more than 17 years at the Pili Police Station, enjoyed the presumption of regularity in the performance of his official duties. 26 The presumption, although rebuttable, stands because the Lanuzo heirs did not adduce evidence to show any deficiency or irregularity in the performance of his official duty as the police investigator of the accident. They also did not show that he was impelled by any ill motive or bias to testify falsely.

Thirdly, the CA unreasonably branded the testimonies of Zamora and SPO1 Corporal as “self–serving.” They were not. Self–serving evidence refers to out–of–court statements that favor the declarant’s interest;27 it is disfavored mainly because the adverse party is given no opportunity to dispute the statement and their admission would encourage fabrication of testimony.28 But court declarations are not self–serving considering that the adverse party is accorded the opportunity to test the veracity of the declarations by cross–examination and other methods.

There is no question that Zamora and SPO1 Corporal were thoroughly cross–examined by the counsel for the Lanuzo heirs. Their recollections remained unchallenged by superior contrary evidence from the Lanuzo heirs.

Fourthly, the doctrine of  res ipsa loquitur had no application here. In Tan v. JAM Transit, Inc.,29 the Court has discussed the doctrine thusly:chanRoblesvirtualLawlibrary

Res ipsa loquitur  is a Latin phrase that literally means “the thing or the transaction speaks for itself.” It is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing that caused the injury complained of is shown to be under the management of the defendant or his servants; and the accident, in the ordinary course of things, would not happen if those who had management or control used proper care, it affords reasonable evidence — in the absence of a sufficient, reasonable and logical explanation by defendant — that the accident arose from or was caused by the defendant’s want of care. This rule is grounded on the superior logic of ordinary human experience, and it is on the basis of such experience or common knowledge that negligence may be deduced from the mere occurrence of the accident itself. Hence, the rule is applied in conjunction with the doctrine of common knowledge.

For the doctrine to apply, the following requirements must be shown to exist, namely: (a) the accident is of a kind that ordinarily does not occur in the absence of someone’s negligence; (b) it is caused by an instrumentality within the exclusive control of the defendant or defendants; and (c) the possibility of contributing conduct that would make the plaintiff responsible is eliminated.30

The Court has warned in Reyes v. Sisters of Mercy Hospital,31 however, that “res ipsa loquitur  is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case.”

Based on the evidence adduced by the Lanuzo heirs, negligence cannot be fairly ascribed to the company considering that it has shown its installation of the necessary warning signs and lights in the project site. In that context, the fatal accident was not caused by any instrumentality within the exclusive control of the company. In contrast, Balbino had the exclusive control of how he operated and managed his motorcycle. The records disclose that he himself did not take the necessary precautions. As Zamora declared, Balbino overtook another motorcycle rider at a fast speed, and in the process could not avoid hitting a barricade at the site, causing him to be thrown off his motorcycle onto the newly cemented road. SPO1 Corporal’s investigation report corroborated Zamora’s declaration. This causation of the fatal injury went uncontroverted by the Lanuzo heirs.

Moreover, by the time of the accident, the project, which had commenced in September 1997, had been going on for more than a month and was already in the completion stage. Balbino, who had passed there on a daily basis in going to and from his residence and the school where he then worked as the principal, was thus very familiar with the risks at the project site. Nor could the Lanuzo heirs justly posit that the illumination was not adequate, for it cannot be denied that Balbino’s motorcycle was equipped with headlights that would have enabled him at dusk or night time to see the condition of the road ahead. That the accident still occurred surely indicated that he himself did not exercise the degree of care expected of him as a prudent motorist.

According to Dr. Abilay, the cause of death of Balbino was the fatal depressed fracture at the back of his head, an injury that Dr. Abilay opined to be attributable to his head landing on the cemented road after being thrown off his motorcycle. Considering that it was shown that Balbino was not wearing any protective head gear or helmet at the time of the accident, he was guilty of negligence in that respect. Had he worn the protective head gear or helmet, his untimely death would not have occurred.

The RTC was correct on its conclusions and findings that the company was not negligent in ensuring safety at the project site. All the established circumstances showed that the proximate and immediate cause of the death of Balbino was his own negligence. Hence, the Lanuzo heirs could not recover damages.32

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDEthe decision promulgated on August 11, 2003 by the Court of Appeals; REINSTATES the decision rendered on October 8, 2001 by the Regional Trial Court, Branch 32, in Pili, Camarines Sur dismissing the complaint; and MAKES no pronouncements on costs of suit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-4977             March 22, 1910

DAVID TAYLOR, plaintiff-appellee, vs.THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it

was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor how long they had been there when the boys found them. It appears, however, that some months before the accident, during the construction of the defendant's plant, detonating caps of the same size and kind as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to have been lying for a considerable time, and from the place where they were found would seem to have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is evidence that any effort ever was made to forbid these children from visiting the defendant company's premises, although it must be assumed that the company or its employees were aware of the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company's track; that some of these caps were used in blasting a well on the company's premises a few months before the accident; that not far from the place where the caps were found the company has a storehouse for the materials, supplies and so forth, used by it in its operations as a street railway and a purveyor of electric light; and that the place, in the neighborhood of which the caps were found, was being used by the company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had the caps under its possession and control. We think also that the evidence tends to

disclose that these caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they were found, with the expectation that they would be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the company or some of its employees either willfully or through an oversight left them exposed at a point on its premises which the general public, including children at play, where not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimidating or rather assuming that the blasting work on the company's well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the defendant company's directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious or negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them.

xxx             xxx             xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties.

xxx             xxx             xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substances which may not have been placed in a safe and proper place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not established the liability of the defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant company's premises, and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise to the accident, which should be deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place where they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad company's premises, at a place where the railroad company knew, or had good reason to suppose, children would be likely to come, and there found explosive signal torpedoes left unexposed by the railroad company's employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable, left in such condition as to

make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad company was liable for in injury received by an infant while upon its premises, from idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to the negligence of the company), the principles on which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation or license to cross the premises of another can not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of  Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and American, formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the defendant's premises, without defendant's express permission or invitation, and while there, was by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to, the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the defendant company owed him no

duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him there by manual force?" What difference, in reason we may observe in this case, is there between an express license to the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be killed, and which would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of  Powers vs. Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of  Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do what will with his own property or that children should be kept under the care of their parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights and interests of the community (see U. S.  vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parent could in any event be imputed to the child so as to deprive it a right to recover in such cases — a point which we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is because we can not agree with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in

each case by the circumstances of the case." As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express permission or invitation' but it is wholly different question whether such youth can be said to have been free from fault when he willfully and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by "the particular circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily depends of his own acts and their consequences; and at the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap; that he was  sui juris  in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and the injury there exists the relation of cause and effect; but if the injury produced should not be the result of acts or omissions of a third party, the latter has no obligation to repair the same, although such acts or omission were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and the damage there exists the relation of cause and effect; but if the damage caused does not arise from the acts or omissions of a third person, there is no obligation to make good upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is shown that the immediate cause of the damage has been the recklessness of the injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is duty of him who shall claim damages to establish their existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the principle, the first setting forth in detail the necessary points of the proof, which are two:  An act or omission on the part of the person who is to be charged with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the act or omission and the damage; the latter must be the direct result of one of the first two. As the decision of March 22, 1881, said, it is necessary that the damages result immediately and directly from an act performed culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are many cases (personal injury cases) was exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction to require the application of "the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to replace it. This produces the event giving occasion for damages—that is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through his act or omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the detonating caps, the property of defendant, and carrying the relation of cause and effect

between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and ten days thereafter let the record be returned to the court wherein it originated, where the judgment will be entered in favor of the defendant for the costs in first instance and the complaint dismissed without day. So ordered.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-3422             June 13, 1952

HIDALGO ENTERPRISES, INC., petitioner, vs.GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.

Quisumbing, Sycip, Quisumbing and Salazar for petitioner.Antonio M. Moncado for respondents.

BENGZON, J.:

This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario.

It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the surface of the ground. Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, having been died of "asphyxia secondary to drowning."

The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.

The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. ( See 65 C.J.S., p. 455.)

The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S., p. 458).

Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of water an attractive nuisance?

The great majority of American decisions say no.

The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.

There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)

In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949.

The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by petitioner — that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual — needs no further discussion.

The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.

ASSUMPTION OF RISK

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-2075            November 29, 1949

MARGARITA AFIALDA, plaintiff-appellant, vs.BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.

Nicolas P. Nonato for appellant.Gellada, Mirasol and Ravena for appellees.

REYES, J.:

This is an action for damages arising from injury caused by an animal. The complaint alleges that the now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker of their carabaos at a fixed compensation; that while tending the animals he was, on March 21, 1947, gored by one of them and later died as a consequence of his injuries; that the mishap was due neither to his own fault nor to   force majeure; and that plaintiff is his elder sister and heir depending upon him for support.

Before filing their answer, defendants moved for the dismissal of the complaint for lack of a cause of action, and the motion having been granted by the lower court, plaintiff has taken this appeal.

Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:

The possessor of an animal, or the one who uses the same, is liable for any damages it may cause, even if such animal should escape from him or stray away.

This liability shall cease only in case, the damage should arise from  force majeure or from the fault of the person who may have suffered it.

The question presented is whether the owner of the animal is liable when damage is caused to its caretaker.

The lower court took the view that under the above-quoted provision of the Civil Code, the owner of an animal is answerable only for damages caused to a stranger, and that for damage caused to the caretaker of the animal the owner would be liable only if he had been negligent or at fault under article 1902 of the same code. Claiming that the lower court was in error, counsel for plaintiff contends that the article 1905 does not distinguish between damage caused to the caretaker and makes the owner liable whether or not he has been negligent or at fault. For authority counsel cites the following opinion which Manresa quotes from a decision of the Spanish Supreme Court:

El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara y evidentemente, se deriva de sus terminos literales, bastando, segun el mismo, que un animal cause perjuicio para que nasca la responsibilidad del dueno, aun no imputandose a este ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal concepto de dueno es suficiente para que arrastre las consecuencias favorables o adversas de esta clase de propiedad, salvo la exception en el mismo contenida. (12 Manresa, Commentaries on the Spanish CivilCode, 573.)

This opinion, however, appears to have been rendered in a case where an animal caused injury to a stranger or third person. It is therefore no authority for a case like the present where the person injured was the caretaker of the animal. The distinction is important. For the statute names the  possessor or user of the animal as the person liable for "any damages it may cause," and this for the obvious reason that the possessor or user has the custody and control of the animal and is therefore the one in a position to prevent it from causing damage.

In the present case, the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. And being injured by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), the death of an employee who was bitten by a feline which his master had asked him to take to his establishment was by said tribunal declared to be "a veritable accident of labor" which should come under the labor laws rather than under article 1905 of the Civil Code. The present action, however, is not brought under the Workmen's Compensation Act, there being no allegation that, among other things, defendant's business, whatever that might be, had a gross income of P20,000. As already stated, defendant's liability is made to rest on article 1905 of the Civil Code. but action under that article is not tenable for the reasons already stated. On the other hand, if action is to be based on article 1902 of the Civil Code, it is essential that there be fault or negligence on the part of the defendants as owners of the animal that caused the damage. But the complaint contains no allegation on those points.

There being no reversible error in the order appealed from, the same is hereby affirmed, but without costs in view of the financial situation of the appellant.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs.HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

Herman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

 

PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)

Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the

deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about two meters from an electric post.

In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired from an in service training on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the way. He told them about the grounded lines of the INELCO In the afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to prove that on and even before June 29,

1967 the electric service system of the INELCO in the whole franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. As a public service operator and in line with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries to persons and damage to property in case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up of the areas respectively assigned to them.

Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in the eastern part near the residence of the late Governor Simeon Mandac; in the far north near the defendant's power plant at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.

A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the deceased three hours after her death, because cyanosis which means lack of oxygen circulating in the blood and rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)

An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.

In this petition for review the petitioner assigns the following errors committed by the respondent CA:

1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of theres gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong typhoon "Gening" which struck Laoag

City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan.

3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of "assumption of risk" in the present case to bar private respondents from collecting damages from petitioner company.

4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the findings of fact of the trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.

6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not petitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns," and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation, not backed up with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).

Furthermore the CA properly applied the principle of res gestae. The CA said:

Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of June 29, 1967. This Court has not been offered any sufficient

reason to discredit the testimonies of these two young ladies. They were one in the affirmation that the deceased, while wading in the waist-deep flood on Guerrero Street five or six meters ahead of them, suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to help, they were stopped by the sight of an electric wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also tried to approach the deceased, but he turned back shouting that the water was grounded. These bits of evidence carry much weight. For the subject of the testimonies was a startling occurrence, and the declarations may be considered part of the res gestae. (CA Decision, p. 21, Rollo)

For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the statements made must concern the occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the satisfaction of said requisites in the case at bar.

The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly, We considered part of the res gestae a conversation between two accused immediately after commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).

While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the waist-deep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained submerged. Under such a circumstance, it is undeniable that a state of mind characterized by nervous excitement had been triggered in Ernesto de la Cruz's being as anybody under the same contingency could have experienced. As such, We cannot honestly exclude his shouts that the water was grounded from the res gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay."

Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the submission that the statement must be one of facts rather than opinion, We cannot agree to the proposition that the one made by him was a mere opinion. On the contrary, his shout was a translation of an actuality as perceived by him through his sense of touch.

Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party to a case, it is necessary that the evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence in question is equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross examination:

Q. And that Erning de la Cruz, how far did he reach from the gate of the house?

A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)

The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz which, if truly adverse to private respondent, would have helped its case. However, due to reasons known only to petitioner, the opportunity was not taken.

Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted correctly in disposing the argument that petitioner be exonerated from liability since typhoons and floods are fortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not said eventuality which directly caused the victim's death. It was through the intervention of petitioner's negligence that death took place. We subscribe to the conclusions of the respondent CA when it found:

On the issue whether or not the defendant incurred liability for the electrocution and consequent death of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The witnesses testified in a general way about their duties and the measures which defendant usually adopts to prevent hazards to life and limb. From these testimonies, the lower court found "that the electric lines and other equipment of defendant corporation were properly maintained by a well-trained team of lineman, technicians and engineers working around the clock to insure that these equipments were in excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower court, however, was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date  in question, and not on the occasion of theemergency situation brought about by the typhoon.

The lower court made a mistake in assuming that defendant's employees worked around the clock during the occurrence of the typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of the franchise area of the INELCO only on June 30, 1967, the day following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. onJune 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days after the typhoon, the INELCO people heard "rumors that someone was electrocuted" so he sent one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO people to inspect their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)

In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be inconstant vigil to prevent or avoid any probable incident that might imperil life or limb. The evidence does not show that defendant did that. On the contrary,

evidence discloses that there were no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)

Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the general public"... considering that electricity is an agency, subtle and deadly, the measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).

Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were on their way to the latter's grocery store "to see to it that the goods were not flooded." As such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been held that a person is excused from the force of the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be without regard to petitioner's consent as she was on her way to protect her merchandise. Hence, private respondents, as heirs, may not be barred from recovering damages as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166).

But petitioner assails the CA for having abused its discretion in completely reversing the trial court's findings of fact, pointing to the testimonies of three of its employees its electrical engineer, collector-inspector, lineman, and president-manager to the effect that it had exercised the degree of diligence required of it in keeping its electric lines free from defects that may imperil life and limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date  in question, and not on the occasion of the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were 'burns', and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (supra).

"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National Power Corporation set out in the early morning of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The foregoing shows that petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming the negligence of petitioner. To aggravate matters, the CA found:

. . .even before  June 28 the people in Laoag were already alerted about the impending typhoon, through radio announcements. Even the fire department of the city announced the

coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric current were noted because "amperes of the switch volts were moving". And yet, despite these danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm was done. Asked why the delay, Loreto Abijero answered that he "was not the machine tender of the electric plant to switch off the current." (pp. 467-468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)

From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but tediously considered the factual circumstances at hand pursuant to its power to review questions of fact raised from the decision of the Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).

In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's fees. Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.

The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the respondent CA, the charge of malice and bad faith on the part of respondents in instituting his case being a mere product of wishful thinking and speculation. Award of damages and attorney's fees is unwarranted where the action was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).

WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION

[G.R. No. 122039. May 31, 2000]

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

D E C I S I ON

MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 oclock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. Sclaw

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting, and case wedging were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months and would have to ambulate in crutches during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck. Korte

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney. Rtcspped

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sungas cause of action was based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorneys fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate cause of the accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of its passengers. He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not supported by evidence. Sdaadsc

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply. Missdaa

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioners jeepney. On the other hand, the issue in this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in this case the common carrier, failed to transport his passenger safely to his destination.[2] In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof. Slxmis

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for the damage to petitioners jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him

and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to passengers. It provides: Slxsc

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5,6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of petitioner to prove that he had to observe extraordinary diligence in the care of his passengers. Scslx

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several factors militate against petitioners contention. Slx

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. - No person shall drive his motor vehicle in such a manner as to obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioners driver took in more passengers than the allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It provides: Mesm

Exceeding registered capacity. - No person operating any motor vehicle shall allow more passengers or more freight or cargo in his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers. Calrky

We find it hard to give serious thought to petitioners contention that Sungas taking an "extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioners contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable.[3] This requires that the following requirements be present: (a) the cause of the breach is independent of the debtors will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the creditor.[4] Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. Kycalr

Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated: Kyle

Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she was not able to enroll in the second semester of that school year. She testified that she had no more intention of continuing with her schooling, because she could not walk and decided not to pursue her degree, major in Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of the fracture side." She likewise decided not to further pursue Physical Education as her major subject, because "my left leg x x x has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code. [5] As an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.[6]

In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that petitioner acted in bad faith in the performance of the contract of carriage. Sungas contention that petitioners admission in open court that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission of bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the accident. Exsm

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 154259             February 28, 2005

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs.ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko)1 and Ruby Lim assail the Decision2 of the Court of Appeals dated 26 November 2001 reversing the Decision3 of the Regional Trial Court (RTC) of Quezon City, Branch 104, as well as the Resolution4 of the Court of Appeals dated 09 July 2002 which denied petitioners’ motion for reconsideration.

The cause of action before the trial court was one for damages brought under the human relations provisions of the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more popularly known by the screen name "Amay Bisaya," alleged that at around 6:00 o’clock in the evening of 13 October 1994, while he was having coffee at the lobby of Hotel Nikko,5 he was spotted by his friend of several years, Dr. Violeta Filart, who then approached him.6 Mrs. Filart invited him to join her in a party at the hotel’s penthouse in celebration of the natal day of the hotel’s manager, Mr. Masakazu Tsuruoka.7 Mr. Reyes asked if she could vouch for him for which she replied: "of course."8 Mr. Reyes then went up with the party of Dr. Filart carrying the basket of fruits which was the latter’s present for the celebrant.9 At the penthouse, they first had their picture taken with the celebrant after which Mr. Reyes sat with the party of Dr. Filart.10 After a couple of hours, when the buffet dinner was ready, Mr. Reyes lined-up at the buffet table but, to his great shock, shame and embarrassment, he was stopped by petitioner herein, Ruby Lim, who claimed to speak for Hotel Nikko as Executive Secretary thereof.11 In a loud voice and within the presence and hearing of the other guests who were making a queue at the buffet table, Ruby Lim told him to leave the party ("huwag ka nang kumain, hindi ka imbitado, bumaba ka na lang").12 Mr. Reyes tried to explain that he was invited by Dr. Filart.13 Dr. Filart, who was within hearing distance, however, completely ignored him thus adding to his shame and

humiliation.14 Not long after, while he was still recovering from the traumatic experience, a Makati policeman approached and asked him to step out of the hotel.15 Like a common criminal, he was escorted out of the party by the policeman.16 Claiming damages, Mr. Reyes asked for One Million Pesos actual damages, One Million Pesos moral and/or exemplary damages and Two Hundred Thousand Pesos attorney’s fees.17

Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the ignominious circumstance painted by the latter. Ms. Lim narrated that she was the Hotel’s Executive Secretary for the past twenty (20) years.18 One of her functions included organizing the birthday party of the hotel’s former General Manager, Mr. Tsuruoka.19 The year 1994 was no different. For Mr. Tsuruoka’s party, Ms. Lim generated an exclusive guest list and extended invitations accordingly.20 The guest list was limited to approximately sixty (60) of Mr. Tsuruoka’s closest friends and some hotel employees and that Mr. Reyes was not one of those invited.21 At the party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink. 22 Mindful of Mr. Tsuruoka’s wishes to keep the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain waiter," to inquire as to the presence of Mr. Reyes who was not invited.23 Mr. Miller replied that he saw Mr. Reyes with the group of Dr. Filart.24 As Dr. Filart was engaged in conversation with another guest and as Ms. Lim did not want to interrupt, she inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did not invite Mr. Reyes.25 Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as he was not invited.26 Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes did not want to leave.27 When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung whom she later approached.28Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim requested from him the same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was not invited.29 Still, Mr. Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to speak to him herself as there were no other guests in the immediate vicinity.30 However, as Mr. Reyes was already helping himself to the food, she decided to wait.31 When Mr. Reyes went to a corner and started to eat, Ms. Lim approached him and said: "alam ninyo, hindo ho kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na kayo."32 She then turned around trusting that Mr. Reyes would show enough decency to leave, but to her surprise, he began screaming and making a big scene, and even threatened to dump food on her.331awphi1.nét

Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of the story to the effect that she never invited Mr. Reyes to the party.34 According to her, it was Mr. Reyes who volunteered to carry the basket of fruits intended for the celebrant as he was likewise going to take the elevator, not to the penthouse but to Altitude 49.35 When they reached the penthouse, she reminded Mr. Reyes to go down as he was not properly dressed and was not invited.36 All the while, she thought that Mr. Reyes already left the place, but she later saw him at the bar talking to Col. Batung. 37 Then there was a commotion and she saw Mr. Reyes shouting.38 She ignored Mr. Reyes.39 She was embarrassed and did not want the celebrant to think that she invited him.40

After trial on the merits, the court a quo dismissed the complaint,41 giving more credence to the testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court likewise ratiocinated that Mr. Reyes assumed the risk of being thrown out of the party as he was uninvited:

Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday celebrant. He assumed the risk of being asked to leave for attending a party to which he was not invited by the host. Damages are pecuniary consequences which the law imposes for the breach of some duty or the violation of some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew that it was not the party of defendant Violeta Filart even if she allowed him to join her and took responsibility for his attendance at the party. His action against defendants Nikko Hotel and Ruby Lim must therefore fail.42

On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding of belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within hearing distance of several guests:

In putting appellant in a very embarrassing situation, telling him that he should not finish his food and to leave the place within the hearing distance of other guests is an act which is contrary to morals, good customs . . ., for which appellees should compensate the appellant for the damage suffered by the latter as a consequence therefore (Art. 21, New Civil Code). The liability arises from the acts which are in themselves legal or not prohibited, but contrary to morals or good customs. Conversely, even in the exercise of a formal right, [one] cannot with impunity intentionally cause damage to another in a manner contrary to morals or good customs.43

The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to inquire into the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she should have approached Dr. Filart first and both of them should have talked to Mr. Reyes in private:

Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to approach appellee Mrs. Filart and together they should have told appellant Reyes in private that the latter should leave the party as the celebrant only wanted close friends around. It is necessary that Mrs. Filart be the one to approach appellant because it was she who invited appellant in that occasion. Were it not for Mrs. Filart’s invitation, appellant could not have suffered such humiliation. For that, appellee Filart is equally liable.

. . .

The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of consideration of one person, which calls not only protection of human dignity but respect of such dignity. Under Article 20 of the Civil Code, every person who violates this duty becomes liable for damages, especially if said acts were attended by malice or bad faith. Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty to some motive or interest or ill-will that partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).44

Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the solidary obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos (P200,000); and (3) attorney’s fees in the amount of Ten Thousand Pesos (P10,000).45 On motion for reconsideration, the Court of Appeals affirmed its earlier decision as the argument raised in the motion had "been amply discussed and passed upon in the decision sought to be reconsidered."46

Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals seriously erred in –

I.

… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER

II.

… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE SUFFERED SUCH HUMILIATION," "WERE IT NOT FOR DR. FILART’S INVITATION"

III.

… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA

IV.

… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS REGARD

V.

… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANT’S BRIEF, THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they cannot be made liable for damages as respondent Reyes assumed the risk of being asked to leave (and being embarrassed and humiliated in the process) as he was a "gate-crasher."

The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury"47 ) refers to self-inflicted injury48 or to the consent to injury49 which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so.50 As formulated by petitioners, however, this doctrine does not find application to the case at bar because even if respondent Reyes assumed the risk of being asked to leave the party, petitioners, under Articles 19 and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and shame.

Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes, a.k.a. "Amay Bisaya," to leave the party where he was not invited by the celebrant thereof thereby becoming liable under Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her.

As the trial court and the appellate court reached divergent and irreconcilable conclusions concerning the same facts and evidence of the case, this Court is left without choice but to use its latent power to review such findings of facts. Indeed, the general rule is that we are not a trier of facts as our jurisdiction is limited to reviewing and revising errors of law.51 One of the exceptions to this general rule, however, obtains herein as the findings of the Court of Appeals are contrary to those of the trial court.52 The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to leave the party as she talked to him politely and discreetly. The appellate court, on the other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed Mr. Reyes by telling him not to finish his food and to leave the place within hearing distance of the other guests. Both courts, however, were in agreement that it was Dr. Filart’s invitation that brought Mr. Reyes to the party.

The consequential question then is: Which version is credible?

From an in depth review of the evidence, we find more credible the lower court’s findings of fact.

First, let us put things in the proper perspective.

We are dealing with a formal party in a posh, five-star hotel,53 for-invitation-only, thrown for the hotel’s former Manager, a Japanese national. Then came a person who was clearly uninvited (by the celebrant)54 and who could not just disappear into the crowd as his face is known by many, being an actor. While he was already spotted by the organizer of the party, Ms. Lim, the very person who generated the guest list, it did not yet appear that the celebrant was aware of his presence. Ms. Lim, mindful of the celebrant’s instruction to keep the party intimate, would naturally want to get rid of the "gate-crasher" in the most hush-hush manner in order not to call attention to a glitch in an otherwise seamless affair and, in the process, risk the displeasure of the celebrant, her former boss. To unnecessarily call attention to the presence of Mr. Reyes would certainly reflect badly on Ms. Lim’s ability to follow the instructions of the celebrant to invite only his

close friends and some of the hotel’s personnel. Mr. Reyes, upon whom the burden rests to prove that indeed Ms. Lim loudly and rudely ordered him to leave, could not offer any satisfactory explanation why Ms. Lim would do that and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on cross-examination, had unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she was very close. Close enough for him to kiss:

Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet table? How close was she when she approached you?

A: Very close because we nearly kissed each other.

Q: And yet, she shouted for you to go down? She was that close and she shouted?

A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."

Q: So, you are testifying that she did this in a loud voice?

. . .

A: Yes. If it is not loud, it will not be heard by many.55

In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him to ridicule and shame, it is highly unlikely that she would shout at him from a very close distance. Ms. Lim having been in the hotel business for twenty years wherein being polite and discreet are virtues to be emulated, the testimony of Mr. Reyes that she acted to the contrary does not inspire belief and is indeed incredible. Thus, the lower court was correct in observing that –

Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the party was made such that they nearly kissed each other, the request was meant to be heard by him only and there could have been no intention on her part to cause embarrassment to him. It was plaintiff’s reaction to the request that must have made the other guests aware of what transpired between them. . .

Had plaintiff simply left the party as requested, there was no need for the police to take him out.56

Moreover, another problem with Mr. Reyes’s version of the story is that it is unsupported. It is a basic rule in civil cases that he who alleges proves. Mr. Reyes, however, had not presented any witness to back his story up. All his witnesses – Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only that it was Dr. Filart who invited him to the party.57

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited, cannot be made liable to pay for damages under Articles 19 and 21 of the Civil Code. Necessarily, neither can her employer, Hotel Nikko, be held liable as its liability springs from that of its employee.58

Article 19, known to contain what is commonly referred to as the principle of abuse of rights,59 is not a panacea for all human hurts and social grievances. Article 19 states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.1awphi1.nét

Elsewhere, we explained that when "a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible."60 The object of this article, therefore, is to set certain standards which must

be observed not only in the exercise of one’s rights but also in the performance of one’s duties.61 These standards are the following: act with justice, give everyone his due and observe honesty and good faith. 62 Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.63 When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of law64 which does not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states:

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Article 2165 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure.66

A common theme runs through Articles 19 and 21,67 and that is, the act complained of must be intentional.68

As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was driven by animosity against him. These two people did not know each other personally before the evening of 13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lim’s alleged abusive conduct except the statement that Ms. Lim, being "single at 44 years old," had a "very strong bias and prejudice against (Mr. Reyes) possibly influenced by her associates in her work at the hotel with foreign businessmen." 69 The lameness of this argument need not be belabored. Suffice it to say that a complaint based on Articles 19 and 21 of the Civil Code must necessarily fail if it has nothing to recommend it but innuendos and conjectures.

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and humane under the circumstances. In this regard, we cannot put our imprimatur on the appellate court’s declaration that Ms. Lim’s act of personally approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she invited Mr. Reyes) gave rise to a cause of action "predicated upon mere rudeness or lack of consideration of one person, which calls not only protection of human dignity but respect of such dignity."70 Without proof of any ill-motive on her part, Ms. Lim’s act of by-passing Mrs. Filart cannot amount to abusive conduct especially because she did inquire from Mrs. Filart’s companion who told her that Mrs. Filart did not invite Mr. Reyes.71 If at all, Ms. Lim is guilty only of bad judgment which, if done with good intentions, cannot amount to bad faith.

Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be made answerable for exemplary damages72 especially for the reason stated by the Court of Appeals. The Court of Appeals held –

Not a few of the rich people treat the poor with contempt because of the latter’s lowly station in life.l^vvphi1.net This has to be limited somewhere. In a democracy, such a limit must be established. Social equality is not sought by the legal provisions under consideration, but due regard for decency and propriety (Code Commission, pp. 33-34). And by way of example or correction for public good and to avert further commission of such acts, exemplary damages should be imposed upon appellees.73

The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the case and the evidence on hand.l^vvphi1.net It is not disputed that at the time of the incident in question, Mr. Reyes was "an actor of long standing; a co-host of a radio program over DZRH; a Board Member of the Music Singer Composer (MUSICO) chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime Watch; and 1992 official candidate of the KBL Party for Governor of Bohol; and an awardee of a number of humanitarian organizations of the Philippines."74 During his direct examination on rebuttal, Mr. Reyes stressed that he had income75 and nowhere did he say otherwise. On the other hand, the records are bereft of

any information as to the social and economic standing of petitioner Ruby Lim. Consequently, the conclusion reached by the appellate court cannot withstand scrutiny as it is without basis.

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might have suffered through Ms. Lim’s exercise of a legitimate right done within the bounds of propriety and good faith, must be his to bear alone.

WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden is GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated 09 July 2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs.

SO ORDERED.

DOCTRINE OF LAST CLEAR CHANCE

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-12219            March 15, 1918

AMADO PICART, plaintiff-appellant, vs.FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in the case we believe that when the accident occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper

criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now before us, where the defendant was actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of

other instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.

ALLIED BANK VS BPI

FACTS:

On October 10, 2002, a check in the amount of P1,000,000.00 payable to "Mateo Mgt. Group International" (MMGI) was presented for deposit and accepted at petitioner's (Allied Bank) Kawit Branch. The check, post-dated

"Oct. 9, 2003", was drawn against the account of Marciano Silva, Jr. (Silva) with respondent BPI Bel-Air Branch. Upon receipt, petitioner sent the check for clearing to respondent through the Philippine Clearing House Corporation (PCHC). The check was cleared by respondent and petitioner credited the account of MMGI with P1,000,000.00. On October 22, 2002, MMGI’s account was closed and all the funds therein were withdrawn. A month later, Silva discovered the debit of P1,000,000.00 from his account. In response to Silva’s complaint, respondent credited his account with the aforesaid sum. Petitioner filed a complaint before the Arbitration Committee, asserting that respondent should solely bear the entire face value of the check due to its negligence in failing to return the check to petitioner within the 24-hour reglementary period as provided in Section 20.1of the Clearing House Rules and Regulations (CHRR) 2000. In its Answer with Counterclaims, respondent charged petitioner with gross negligence for accepting the post-dated check in the first place. It contended that petitioner’s admitted negligence was the sole and proximate cause of the loss.

ISSUE

: What does the Doctrine of Last Clear Chance enunciate?

RULING

: The doctrine of last clear chance, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence. The doctrine necessarily assumes negligence on the part of the defendant and contributory negligence on the part of the plaintiff, and does not apply except upon that assumption. Stated differently, the antecedent negligence of the plaintiff does not preclude him from recovering damages caused by the supervening negligence of the defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence. Moreover, in situations where the doctrine has been applied, it was

defendant’s failure to exercise such ordinary care, having the last clear chance to avoid loss or injury, which was the proximate cause of the occurrence of such loss or injury.

ISSUE

: Does the Doctrine of Last Clear Chance apply in this case?

RULING

: YES. In this case, the evidence clearly shows that the proximate cause of the unwarranted encashment of the subject check was the negligence of respondent who cleared a post-dated check sent to it thru the PCHC clearing facility without observing its own verification procedure. As correctly found by the PCHC and upheld by the RTC, if only respondent exercised ordinary care in the clearing process, it could have easily noticed the glaring defect upon seeing the date written on the face of the check "Oct. 9, 2003". Respondent could have then promptly returned the check and with the check thus dishonored, petitioner would have not credited the amount thereof to the payee’s

account. Thus, notwithstanding the antecedent negligence of the petitioner in accepting the post-dated check for deposit, it can seek reimbursement from respondent the amount credited to the payee’s account covering the check.

THIRD DIVISION

[G.R. Nos. 79050-51. November 14, 1989.]

PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her personal guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her minor children, namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, Respondents.

Efren N. Ambrosio & Associates for petitioner PNEI.

Emiliano S. Micu for Respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. — The doctrine of last clear chance applies only in a situation where the defendant, having the last fair chance to avoid the impending harm and failed to do so, becomes liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff.

2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. — In order that the doctrine of last clear chance may be applied, it must be shown that the person who allegedly had the last opportunity to avert the accident was aware of the existence of the peril or with exercise of due care should have been aware of it.

3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY AVAILABLE MEANS. — This doctrine of last chance has no application to a case where a person is to act instantaneously, and if the injury cannot be avoided by using all means available after the peril is or should have been discovered.

4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY OR A STOP INTERSECTION. — Section 43 (c), Article III, Chapter IV of Republic Act No. 1436 cannot apply to case a bar where at the time of the accident, the jeepney had already crossed the intersection.

5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. — A finding of negligence on the part of the driver establishes a presumption that the employer has been negligent and the latter has the burden of proof that it has exercised due negligence not only in the selection of its employees but also in adequately supervising their work.

6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES. — Plaintiff’s failure to present documentary evidence to support their claim for damages for loss of earning capacity of the deceased victim does not bar recovery of the damages, if such loss may be based sufficiently on their testimonies.

7. ID.; ID.; INDEMNITY FIXED AT P30,000. — The indemnity for the death of a person was fixed by this Court at (P30,000.00).

D E C I S I O N

CORTES, J.:

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the decision of the Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the Court of First Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein PANTRANCO was ordered to pay damages and attorney’s fees to herein private respondents.chanrobles virtual lawlibrary

The pertinent fact are as follows:chanrob1es virtual 1aw library

At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the highway going to Malalam River. Upon reaching the highway, the jeepney turned right and proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the jeepney’s lane while negotiating a curve, and collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children, Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney was extensively damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has never been seen and has apparently remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case amicably under the "No Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor children, filed separate actions for damages arising from quasi-delict against PANTRANCO, respectively docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Ico’s alleged negligence as the proximate cause of the accident, invoked the defense of due diligence in the selection and supervision of its driver, Ambrosio Ramirez.chanroblesvirtualawlibrary

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the total amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven (P2,304,647.00) as damages, plus 10% thereof as attorney’s fees and costs to Maricar Baesa in Civil Case No. 561-R, and the total amount of Six Hundred Fifty Two Thousand Six Hundred Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as attorney’s fees and costs to Fe Ico and her children in Civil Case No. 589-R. On appeal, the cases were consolidated and the Court of Appeals modified the decision of the trial court by ordering PANTRANCO to pay the total amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred Twenty Seven Pesos (P1,189,927.00) as damages, plus Twenty Thousand Pesos (P20,000.00) as attorney’s fees to Maricar Baesa, and the total amount of Three Hundred Forty-Four Thousand Pesos (P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorney’s fees to Fe Ico and her children, and to pay the costs in both cases.

All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate from date of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeal’s decision, but on June 26, 1987, it denied the same for lack of merit. PANTRANCO then filed the instant petition for review.

I

Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance" against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the driver of the passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:chanrob1es virtual 1aw library

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People’s Lumber and Hardware, Et. Al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No. 70493, May 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim for damages.chanrobles lawlibrary : rednad

To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its driver was not the proximate cause of the accident and that the sole proximate cause was the supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is petitioner’s position that even assuming arguendo, that the bus encroached into the lane of the jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt shoulder on his right without danger to himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioner’s contention, the doctrine of "last clear chance" finds no application in this case. For the doctrine to be applicable, it is necessary to show that the person who allegedly had the last opportunity to avert the accident was aware of the existence of the peril or should, with exercise of due care, have been aware of it. One cannot be expected to avoid an accident or injury if he does not know or could not have known the existence of the peril. In this case, there is nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite direction. As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the highway is generally entitled to assume that an approaching vehicle coming towards him on the wrong side, will return to his proper lane of traffic. There was nothing to indicate to David Ico that the bus could not return to its own lane or was prevented from returning to the proper lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the Pantranco bus who was seated beside the driver Ramirez at the time of the accident, testified that Ramirez had no choice but to swerve the steering wheel to the left and encroach on the jeepney’s lane because there was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is belied by the evidence on record which clearly shows that there was enough space to swerve the bus back to its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].

Moreover, both the trial court and the Court of Appeals found that at the time of the accident the Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David Ico must have realized that the bus was not returning to its own lane, it was already too late to swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus was running prevented David Ico from swerving the jeepney to the right shoulder of the road in time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it. This Court has held that the last clear chance doctrine "can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered" [Ong v. Metropolitan Water District, supra].chanrobles.com : virtual law library

Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a through highway or a stop intersection shall yield the right of way to all vehicles approaching in either direction on such through highway.

Petitioner’s misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of the accident, the jeepney had already crossed the intersection and was on its way to Malalam River. Petitioner itself cited Fe Ico’s testimony that the accident occurred after the jeepney had travelled a distance of about two (2) meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In fact, even the witness for the petitioner, Leo Marantan, testified that both vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating that the jeepney had already crossed the intersection.

Considering the foregoing, the Court finds that the negligence of petitioner’s driver in encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing the jeepney coming from the opposite direction was the sole and proximate cause of the accident without which the collision would not have occurred. There was no supervening or intervening negligence on the part of the jeepney driver which would have made the prior negligence of petitioner’s driver a mere remote cause of the accident.

II

On the issue of its liability as an employer, petitioner claims that it had observed the diligence of a good father of a family to prevent damage, conformably to the last paragraph of Article 2180 of the Civil Code. Petitioner

adduced evidence to show that in hiring its drivers, the latter are required to have professional driver’s license and police clearance. The drivers must also pass written examinations, interviews and practical driving tests, and are required to undergo a six-month training period. Rodrigo San Pedro, petitioner’s Training Coordinator, testified on petitioner’s policy of conducting regular and continuing training programs and safety seminars for its drivers, conductors, inspectors and supervisors at a frequency rate of at least two (2) seminars a month.

On this point, the Court quotes with approval the following findings of the trial court which was adopted by the Court of Appeals in its challenged decision:chanrob1es virtual 1aw library

When an injury is caused by the negligence of an employee, there instantly arises a presumption that the employer has been negligent either in the selection of his employees or in the supervision over their acts. Although this presumption is only a disputable presumption which could be overcome by proof of diligence of a good father of a family, this Court believes that the evidence submitted by the defendant to show that it exercised the diligence of a good father of a family in the case of Ramirez, as a company driver is far from sufficient. No support evidence has been adduced. The professional driver’s license of Ramirez has not been produced. There is no proof that he is between 25 to 38 years old. There is also no proof as to his educational attainment, his age, his weight and the fact that he is married or not. Neither are the result of the written test, psychological and physical test, among other tests, have been submitted in evidence [sic]. His NBI or police clearances and clearances from previous employment were not marked in evidence. No evidence was presented that Ramirez actually and really attended the seminars. Vital evidence should have been the certificate of attendance or certificate of participation or evidence of such participation like a logbook signed by the trainees when they attended the seminars. If such records are not available, the testimony of the classmates that Ramirez was their classmate in said seminar (should have been presented) [CA Decision, pp. 8-9; Rollo, pp. 51-52].chanrobles law library

Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its driver only means that he underwent the same rigid selection process and was subjected to the same strict supervision imposed by petitioner on all applicants and employees. It is argued by the petitioner that unless proven otherwise, it is presumed that petitioner observed its usual recruitment procedure and company polices on safety and efficiency [Petition, p. 20; Rollo, p. 37].

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption of negligence on the part of petitioner and the burden of proving that it exercised due diligence not only in the selection of its employees but also in adequately supervising their work rests with the petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623]. Contrary to petitioner’s claim, there is no presumption that the usual recruitment procedures and safety standards were observed. The mere issuance of rules and regulations and the formulation of various company policies on safety, without showing that they are being complied with, are not sufficient to exempt petitioner from liability arising from the negligence of its employee. It is incumbent upon petitioner to show that in recruiting and employing the erring driver, the recruitment procedures and company policies on efficiency and safety were followed. Petitioner failed to do this. Hence, the Court finds no cogent reason to disturb the finding of both the trial court and the Court of Appeals that the evidence presented by the petitioner, which consists mainly of the uncorroborated testimony of its Training Coordinator, is insufficient to overcome the presumption of negligence against petitioner.cralawnad

III

On the question of damages, petitioner claims that the Court of Appeals erred in fixing the damages for the loss of earning capacity of the deceased victims. Petitioner assails respondent court’s findings because no documentary evidence in support thereof, such as income tax returns, pay-rolls, pay slips or invoices obtained in the usual course of business, were presented [Petition, p. 22; Rollo, p. 39]. Petitioner argues that

the "bare and self-serving testimonies of the wife of the deceased David Ico and the mother of the deceased Marilyn Baesa . . . have no probative value to sustain in law the Court of Appeals’ conclusion on the respective earnings of the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioner’s contention that the evidence presented by the private respondent does not meet the requirements of clear and satisfactory evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of damages for the loss of earning capacity of the deceased victims. While it is true that private respondents should have presented documentary evidence to support their claim for damages for loss of earning capacity of the deceased victims, the absence thereof does not necessarily bar the recovery of the damages in question. The testimony of Fe Ico and Francisca Bascos as to the earning capacity of David Ico, and the spouses Baesa, respectively, are sufficient to establish a basis from which the court can make a fair and reasonable estimate of the damages for the loss of earning capacity of the three deceased victims. Moreover, in fixing the damages for loss of earning capacity of a deceased victim, the court can consider the nature of his occupation, his educational attainment and the state of his health at the time of death.

In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981 and was driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both thirty (30) years old at the time of their death. Ceasar Baesa was a commerce degree holder and the proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper and the Valley Times at Cauayan, Isabela. Marilyn Baesa graduated as a nurse in 1976 and at the time of her death, was the company nurse, personnel manager, treasurer and cashier of the Ilagan Press at Ilagan, Isabela. Respondent court duly considered these factors, together with the uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the amount of damages for the loss of earning capacity of David Ico and the spouses Baesa.chanrobles.com:cralaw:red

However, it should be pointed out that the Court of Appeals committed error in fixing the compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent court awarded to plaintiff (private respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00) as "compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa and another Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is clearly erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126 SCRA 518, the indemnity for the death of a person was fixed by this Court at Thirty Thousand Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos (P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino Baesa or Thirty Thousand Pesos (P30,000.00) for the death of each brother.

The other items of damages awarded by respondent court which were not challenged by the petitioner are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court of Appeals is hereby AFFIRMED with the modification that the amount of compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos (P30,000.00) each.chanrobles law library

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 70493 May 18, 1989

GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM and PAUL ZACARIAS y INFANTE, petitioners, vs.INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO, Minors ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE CORAZON, JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented by their mother, CECILIA A. VDA. DE CALIBO,respondents.

Rufino Mayor and Isidro M. Ampig for petitioners.

Manuel L. Hontanosas for private respondents.

 

NARVASA, J.:

There is a two-fold message in this judgment that bears stating at the outset. The first, an obvious one, is that it is the objective facts established by proofs presented in a controversy that determine the verdict, not the plight of the persons involved, no matter how deserving of sympathy and commiseration because, for example, an accident of which they are the innocent victims has brought them to. reduced circumstances or otherwise tragically altered their lives. The second is that the doctrine laid done many, many years ago in Picart vs. Smith 1continues to be good law to this day.

The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the Trial Court as follows: 2

Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the wheel, as it approached from the South Lizada Bridge going towards the direction of Davao City at about 1:45 in the afternoon of July 4,1979. At about that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven by defendant Paul Zacarias y Infants, coming from the opposite direction of Davao City and bound for Glan, South Cotabato, had just crossed said bridge. At about 59 yards after crossing the bridge, the cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and Patos sustained physical injuries. Zacarias was unhurt. As a result of the impact, the left side of the truck was slightly damaged while the left side of the jeep, including its fender and hood, was extensively damaged. After the impact, the jeep fell and rested on its right side on the asphalted road a few meters to the rear of the truck, while the truck stopped on its wheels on the road.

On November 27, 1979, the instant case for damages was filed by the surviving spouse and children of the late Engineer Calibo who are residents of Tagbilaran City against the driver and owners of the cargo truck.

For failure to file its answer to the third party complaint, third party defendant, which insured the cargo truck involved, was declared in default.

The case filed by the heirs of Engineer Calibo his widow and minor children, private respondents herein was docketed as

Civil Case No. 3283 of the Court of First Instance of Bohol. 3 Named defendants in the complaint were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners of the Glan People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." 4 The defendants' answer however alleged that the lumber and hardware business was exclusively owned by George Y. Lim, this being evidenced by the Certificate of Registration issued by the Bureau of Domestic Trade; Fabio S. Agad was not a co-owner thereof but "merely employed by . . . George Y. Lim as bookkeeper"; and Felix Lim had no connection whatever with said business, "he being a child only eight (8) years of age." 5

"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the Court reached the conclusion "that the plaintiffs failed to establish by preponderance of evidence the negligence, and thus the liability, of the defendants." Accordingly, the Court dismissed the complaint (and defendants' counterclaim) "for insufficiency of evidence." Likewise dismissed was third-party complaint presented by the defendants against the insurer of the truck. The circumstances leading to the Court's conclusion just mentioned, are detailed in the Court's decision, as follows:

1. Moments before its collission with the truck being operated by Zacarias, the jeep of the deceased Calibo was "zigzagging." 6

2. Unlike Zacarias who readily submitted himself to investigation by the police, Calibo's companions, Roranes (an accountant), and Patos, who suffered injuries on account of the collision, refused to be so investigated or give statements to the police officers. This, plus Roranes' waiver of the right to institute criminal proceedings against Zacarias, and the fact that indeed no criminal case was ever instituted in Court against Zacarias, were "telling indications that they did not attribute the happening to defendant Zacarias' negligence or fault." 7

3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and detailed as that of . . . Zacarias," and was "uncertain and even contradicted by the physical facts and the police investigators Dimaano and Esparcia." 8

4. That there were skid marks left by the truck's tires at the scene, and none by the jeep, demonstrates that the driver of the truck had applied the brakes and the jeep's driver had not; and that the jeep had on impact fallen on its right side is indication that it was running at high speed. Under the circumstances, according to the Court, given "the curvature of the road and the descending grade of the jeep's lane, it was negligence on the part of the driver of the jeep, Engr. Calibo, for not reducing his speed upon sight of the truck and failing to apply the brakes as he got within collision range with the truck."

5. Even if it be considered that there was some antecedent negligence on the part of Zacarias shortly before the collision, in that he had caused his truck to run some 25 centimeters to the left of the center of the road, Engr. Calibo had the last clear chance of avoiding the accident because he still had ample room in his own lane to steer clear of the truck, or he could simply have braked to a full stop.

The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs' appeal, l0 reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis of the following circumstances, to wit:

1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the collision occurred,' and although Zacarias saw the jeep from a distance of about 150 meters, he "did not drive his truck back to his lane in order to avoid collision with the oncoming jeep . . .;" 11 what is worse, "the truck driver suddenly applied his brakes even as he knew that he was still within the lane of the jeep;" 12 had both vehicles stayed in their respective lanes, the collision would never have occurred, they would have passed "along side each other safely;" 13

2) Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the latter's demand, was the 'driver's license of his co-driver Leonardo Baricuatro;" 14

3) the waiver of the right to file criminal charges against Zacarias should not be taken against "plaintiffs" Roranes and Patos who had the right, under the law, to opt merely to bring a civil suit. 15

The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of negligence on the part of his employer, and their liability is both primary and solidary." It therefore ordered "the defendants jointly and solidarily to indemnify the plaintiffs the following amounts:

(1) P30,000.00 for the death of Orlando Calibo;

(2) P378,000.00 for the loss of earning capacity of the deceased

(3) P15,000.00 for attorney's fees;

(4) Cost of suit. 16

The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this Court on certiorariand pray for a reversal of the judgment of the Intermediate Appellate Court which, it is claimed, ignored or ran counter to the established facts. A review of the record confirms the merit of this assertion and

persuades this Court that said judgment indeed disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment, consequently, will have to be reversed.

The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep when the collision occurred" is a loose one, based on nothing more than the showing that at the time of the accident, the truck driven by Zacarias had edged over the painted center line of the road into the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by the uncontradicted evidence, the actual center line of the road was not that indicated by the painted stripe but, according to measurements made and testified by Patrolman Juanita Dimaano, one of the two officers who investigated the accident, correctly lay thirty-six (36) centimeters farther to the left of the truck's side of said stripe.

The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to the effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide, and that of the truck three (3) meters and three (3) centimeters, measured from the center stripe to the corresponding side lines or outer edges of the road. 17 The total width of the road being, therefore, six (6) meters and seventy-eight (78) centimeters, the true center line equidistant from both side lines would divide the road into two lanes each three (meters) and thirty-nine (39) centimeters wide. Thus, although it was not disputed that the truck overrode the painted stripe by twenty-five (25) centimeters, it was still at least eleven (11) centimeters away from its side of the true center line of the road and well inside its own lane when the accident occurred. By this same reckoning, since it was unquestionably the jeep that rammed into the stopped truck, it may also be deduced that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane of the truck by at least the same 11-centimeter width of space.

Not only was the truck's lane, measured from the incorrectly located center stripe uncomfortably narrow, given that vehicle's width of two (2) meters and forty-six (46) centimeters; the adjacent road shoulder was also virtually impassable, being about three (3) inches lower than the paved surface of the road and "soft--not firm enough to offer traction for safe passage — besides which, it sloped gradually down to a three foot-deep ravine with a river below. 18 The truck's lane as erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance from the edge of the road and the dangerous shoulder and little room for maneuver, in case this was made necessary by traffic contingencies or road conditions, if it always kept to said lane. It being also shown that the accident happened at or near the point of the truck's approach to a curve, 19 which called for extra precautions against driving too near the shoulder, it could hardly be accounted negligent on the part of its driver to intrude temporarily, and by only as small as a twenty-five centimeter wide space (less than ten inches), into the opposite lane in order to insure his vehicle's safety. This, even supposing that said maneuver was in fact an intrusion into the opposite lane, which was not the case at all as just pointed out.

Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in applying his brakes instead of getting back inside his lane upon qqqespying the approaching jeep. Being well within his own lane, as has already been explained, he had no duty to swerve out of the jeep's way as said Court would have had him do. And even supposing that he was in fact partly inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters away cannot be considered an unsafe or imprudent action, there also being uncontradicted evidence that the jeep was "zigzagging" 20 and hence no way of telling in which direction it would go as it approached the truck.

Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no driver's license at the time. The traffic accident report attests to the proven fact that Zacarias voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had been renewed just the day before the accident, on July 3, 1979. 21 The Court was apparently misled by the circumstance that when said driver was first asked to show his license by the investigators at the scene of the collision, he had first inadvertently produced the license of a fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked Zacarias to bring it back to him in Glan, Cotabato. 22

The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a few significant indicators that it was rather Engineer Calibo's negligence that was the proximate cause of the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and later confirmed in his written statement at the police headquarters 23 that the jeep had been "zigzagging," which is to say that it was travelling or being driven erratically at the time. The other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident had remarked on the jeep's "zigzagging." 24 There is moreover more than a suggestion that Calibo had been drinking shortly before the accident. The decision of the Trial Court adverts to further testimony of Esparcia to the effect that three of Calibo's companions at the beach party he was driving home from when the collision occurred, who, having left ahead of him went to the scene when they heard about the accident, had said that there had been a drinking spree at the party and, referring to Calibo, had remarked: "Sabi na huag nang mag drive . . . . pumipilit," (loosely translated, "He was advised not to drive, but he insisted.")

It was Calibo whose driver's license could not be found on his person at the scene of the accident, and was reported by his companions in the jeep as having been lost with his wallet at said scene, according to the traffic accident report, Exhibit "J". Said license unexplainedly found its way into the record some two years later.

Reference has already been made to the finding of the Trial Court that while Zacarias readily submitted to interrogation and gave a detailed statement to the police investigators immediately after the accident, Calibo's two companions in the jeep and supposed eyewitnesses, Agripino Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who, together with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal case against Zacarias. 25

Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming some antecedent negligence on the part of Zacarias in failing to keep within his designated lane, incorrectly demarcated as it was, the physical facts, either expressly found by the Intermediate Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve the latter of any actionable responsibility for the accident under the rule of the last clear chance.

Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately thirty kilometers per hour. 26 The private respondents have admitted that the truck was already at a full stop when the jeep plowed into it. And they have not seen fit to deny or impugn petitioners' imputation that they also admitted the truck had been brought to a stop while the jeep was still thirty meters away. 27 From these facts the logical conclusion emerges that the driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep away from the truck, either of which he had sufficient time to do while running at a speed of only thirty kilometers per hour. In those circumstances, his duty was to seize that opportunity of avoidance, not merely rely on a supposed right to expect, as the Appellate Court would have it, the truck to swerve and leave him a clear path.

The doctrine of the last clear chance provides as valid and complete a defense to accident liability today as it did when invoked and applied in the 1918 case of Picart vs. Smith, supra, which involved a similar state of facts. Of those facts, which should be familiar to every student of law, it is only necessary to recall the summary made in the syllabus of this Court's decision that:

(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he improperly pulled his horse over to the railing on the right. The driver of the automobile, however guided his car toward the plaintiff without diminution of speed until he was only few feet away. He then turned to the right but passed so closely to the horse that the latter being frightened, jumped around and was killed by the passing car. . . . .

Plaintiff Picart was thrown off his horse and suffered contusions which required several days of medical attention. He sued the defendant Smith for the value of his animal, medical expenses and damage to his apparel and obtained judgment from this Court which, while finding that there was negligence on the part of both parties, held that that of the defendant was the immediate and determining cause of the accident and that of the plaintiff ". . . the more remote factor in the case":

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.

Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-petitioner) George Lim, an inquiry into whether or not the evidence supports the latter's additional defense of due diligence in the selection and supervision of said driver is no longer necessary and wig not be undertaken. The fact is that there is such evidence in the record which has not been controverted.

It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded in its appealed decision, as alleged owners, with petitioner George Lim, of Glan People's Lumber and Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only the certificate of registration issued by the Bureau of Domestic Trade identifying Glan People's Lumber and Hardware as a business name registered by George Lim, 28 but also unimpugned allegations into the petitioners' answer to the complaint that Pablo S. Agad was only an employee of George Lim and that Felix Lim, then a child of only eight (8) years, was in no way connected with the business.

In conclusion, it must also be stated that there is no doubt of this Court's power to review the assailed decision of the Intermediate Appellate Court under the authority of precedents recognizing exceptions to the familiar rule binding it to observe and respect the latter's findings of fact. Many of those exceptions may be cited to support the review here undertaken, but only the most obvious — that said findings directly conflict with those of the Trial Court — will suffice. 29 In the opinion of this Court and after a careful review of the record, the evidence singularly fails to support the findings of the Intermediate Appellate Court which, for all that appears, seem to have been prompted rather by sympathy for the heirs of the deceased Engineer Calibo than by an objective appraisal of the proofs and a correct application of the law to the established facts. Compassion for the plight of those whom an accident has robbed of the love and support of a husband and father is an entirely natural and understandable sentiment. It should not, however, be allowed to stand in the way of, much less to influence, a just verdict in a suit at law.

WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby REVERSED, and the complaint against herein petitioners in Civil Case No. 3283 of the Court of First Instance of Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs.COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.

R E S O L U T I O N

 

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the

ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, vs.COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

 

REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered. 2

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees.  4 In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations. 5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as exemplary damages, with legal rate of interest from the date of the filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party plaintiff has paid to the plaintiff. With costs against the defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. 7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for reconsideration.10 This resolution was received by respondent spouses on February 22, 1980. 11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days from notice thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had already filed their second motion for reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the second motion for reconsideration, designated two additional justices to form a division of five.  16 On September 3, 1980, said division of five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980, and affirming in toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of September 3, 1980, contending that the second motion for reconsideration of private respondent spouses was filed out of time and that the decision of September 25, 1979 penned by Justice

Agrava was already final. It further submitted therein that the relationship of Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court dated October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground that the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and on the additional ground that said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor rule in holding PLDT liable to respondent Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava asponente;

(b) October 10, 1979, a copy of said decision was received by private respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private respondents;

(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;

(e) February 22, 1980, a copy of said denial resolution was received by private respondents;

(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private respondents

(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for reconsideration within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated September 25, 1979 and setting aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for reconsideration and, consequently, said second motion for reconsideration itself were filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which the first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on the last day of the reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt on February 22, 1980 of the resolution denying their first motion for reconsideration, private respondents had two remedial options. On February 23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a

motion for leave of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the period within which to do so. On the other hand, they could have appealed through a petition for review on certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which motions were by then time-barred.

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which was suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no longer validly take further proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing of the motion for leave to file a second motion for reconsideration by herein respondents on February 29, 1980 and the subsequent filing of the motion itself on March 7, 1980, after the expiration of the reglementary period to file the same, produced no legal effects. Only a motion for re-hearing or reconsideration filed in time shall stay the final order or judgment sought to be re-examined. 23

The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to file a second motion for reconsideration, is null and void. The period for filing a second motion for reconsideration had already expired when private respondents sought leave to file the same, and respondent court no longer had the power to entertain or grant the said motion. The aforesaid extension of ten (10) days for private respondents to file their second motion for reconsideration was of no legal consequence since it was given when there was no more period to extend. It is an elementary rule that an application for extension of time must be filed prior to the expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said extension for filing a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the same.

No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second motion for reconsideration and reversing the original decision are null and void and cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the accepted rule that once a decision has become final and executory it is removed from the power and jurisdiction of the court which rendered it to further alter or amend, much less revoke it. 25 The decision rendered anew is null and void.  26 The court's inherent power to correct its own errors should be exercised before the finality of the decision or order sought to be corrected, otherwise litigation will be endless and no question could be considered finally settled. Although the granting or denial of a motion for reconsideration involves the exercise of discretion,  27 the same should not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of the respondent court in its original decision that the accident which befell private respondents was due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. Such findings were reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent court's resolution of January 24, 1980 which we quote with approval:

First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the left that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was not due to the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. That may explain

plaintiff-husband's insistence that he did not see the ACCIDENT MOUND for which reason he ran into it.

Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.

It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely and conveniently passable to vehicles. The situation could have been worse to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing south was taken.

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not have been thrown against the windshield and they would not have suffered their injuries.

Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND, then plaintiff-husband had not exercised the diligence of a good father of a family to avoid the accident. With the drizzle, he should not have run on dim lights, but should have put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he was running on the outside lane at 25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the existence and location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution, he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT MOUND. 29

The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages.  30 The perils of the road were known to, hence appreciated and assumed by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner.

The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform and warn the public of the presence of excavations on the site. The private respondents already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury.  31 It is basic that private respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the presence and location of the

excavations there. It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient evidence to prove any negligence on the part of PLDT. We have for consideration only the self-serving testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of a police report of the incident and the non-submission of a medical report from the hospital where private respondents were allegedly treated have not even been satisfactorily explained.

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated, with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing the same motivation to plaintiffs, another person could have deliberately engineered a similar accident in the hope and expectation that the Court can grant him substantial moral and exemplary damages from the big corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant which would have extreme difficulty in contesting such person's claim. If there were no witness or record available from the police department of Bacolod, defendant would not be able to determine for itself which of the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police department. 32

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. 33 Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail.WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-7664             August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, vs.METROPOLITAN WATER DISTRICT, defendant-appellee.

Tomas Tria Tirona for appellants.Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his death was caused by his own negligence or by unavoidable accident. Defendant also avers that it had exercised due diligence in the selection of, and supervision over, its employees and that it had observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount involved exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of the water at different parts are indicated by appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time that the three brothers had gone to said natatorium for they had already been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool area and Manuel Abaño was going around the pools to observe the bathers in compliance with the instructions of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard Manuel Abaño of the same happening and Abaño immediately jumped into the big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge of the pool and Abaño immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy already dead. The doctor ordered that the body be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the

following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article provides that "whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict. Under the second article, this obligation is demandable not only for one's own acts or omissions but also for those of persons for whom one is responsible. In addition, we may quote the following authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or by implication invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts, to the end of making them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be the insurer of the safety of patrons. And the death of a patron within his premises does not cast upon him the burden of excusing himself from any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium, where it appeared merely that he was lastly seen alive in water at the shallow end of the pool, and some ten or fifteen minutes later was discovered unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be observed is that the person claiming damages has the burden of proving that the damage is caused by the fault or negligence of the person from whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the part of appellee so as to render it liable for damages for the death of Dominador Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who may render help at a moment's notice, and they ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was not available or was attending to something else with the result that his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three or four minutes to elapse before retrieving the body from the water. This negligence of Abaño, they contend, is attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the written statements given by them in the investigation conducted by the Police Department of Quezon City

approximately three hours after the happening of the accident. Thus, these two boys admitted in the investigation that they narrated in their statements everything they knew of the accident, but, as found by the trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason he failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person under water who turned out to be his brother. For this reason, the trial court made this conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately respond to their callmay therefore be disregarded because they are belied by their written statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño immediately gave him manual artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the inspector immediately injected him with camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines who however came late because upon examining the body he found him to be already dead. All of the foregoing shows that appellee has done what is humanly possible under the circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having the last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply considering that the record does not show how minor Ong came into the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers that he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what happened to him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of a third person which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself in the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two

parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances, the law is that a person who has the last clear chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there without any companion in violation of one of the regulations of appellee as regards the use of the pools, and it appearing that lifeguard Aba_¤_o responded to the call for help as soon as his attention was called to it and immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order to bring him back to life, it is clear that there is no room for the application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and which to his drowning. As a boy scout he must have received instructions in swimming. He knew, or have known that it was dangerous for him to dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the same, without pronouncement as to costs.

THIRD DIVISION 

 

CRESENCIA ACHEVARA, ALFREDO ACHEVARA, andBENIGNO VALDEZ,Petitioners,

 

- versus -

 

ELVIRA RAMOS, JOHN

ARNEL RAMOS, and

KHRISTINE CAMILLE RAMOS,

Respondents.

G.R. No. 175172

 

Present:

 

YNARES-SANTIAGO, J.,

Chairperson,

CHICO-NAZARIO,

VELASCO, JR.

NACHURA, and

PERALTA, JJ.

 

Promulgated:

 

September 29, 2009

x-------------------------------------------------------------------------------------------------x

 D E C I S I O N  PERALTA, J.: 

This is a petition for review on certiorari[1] of the Decision dated April 25, 2006 of the Court of

Appeals in CA-G.R. CV No. 67027, and its Resolution dated October 23, 2006, denying petitioners motion for

reconsideration. The Court of Appeals affirmed with modification the Decision of the Regional Trial Court

(RTC) of Ilocos Sur, Branch 22, dated February 14, 2000, holding petitioners solidarily liable to respondents

for damages incurred due to a vehicular accident, which resulted in the death of Arnulfo Ramos. 

The facts are as follows:

 

On June 27, 1995, respondents Elvira Ramos and her two minor children, namely, John Arnel Ramos

and Khristine Camille Ramos, filed with the RTC of Ilocos Sur a Complaint[2] for damages under Article

2176[3] of the Civil Code against petitioners Cresencia Achevara, Alfredo Achevara and Benigno Valdez for the

death of Arnulfo Ramos, husband of Elvira Ramos and father of her two children, in a vehicular accident that

happened on April 22, 1995 at the national highway along Barangay Tablac, Candon, Ilocos Sur. Crescencia

Achevara was sued as the operator of the passenger jeep with Plate No. DKK-995, which was involved in the

vehicular accident. Alfredo Achevara was impleaded as the husband of the operator and as the administrator

of the conjugal partnership properties of the Spouses Achevara.

 

In their Complaint,[4] respondents alleged that in the morning of April 22, 1995, Benigno Valdez was

driving a passenger jeep heading north on the national highway inBarangay Tablac, Candon, Ilocos Sur in a

reckless, careless, and negligent manner. He tried to overtake a motorcycle, causing the passenger jeep to

encroach on the opposite lane and bump the oncoming vehicle driven by Arnulfo Ramos. The injuries

sustained by Arnulfo Ramos caused his death, notwithstanding prompt medical assistance. Respondents

alleged that Crescencia Achevara failed to exercise due diligence in the selection and supervision of Benigno

Valdez as driver of the passenger jeep. Respondents sought to recover actual damages for medical expenses

in the sum of P33,513.00 and funeral expenses in the sum of P30,000.00, as well as moral and exemplary

damages, lost earnings,attorney's fees and litigation expenses.

In their Answer,[5] petitioners denied respondents allegation that Benigno Valdez overtook a motorcycle

and bumped the vehicle driven by Arnulfo Ramos. They alleged that on April 22, 1995, Benigno Valdez was

driving southward at a moderate speed when he saw an owner-type jeep coming from the south and

heading north, running in a zigzag manner, and encroaching on the west lane of the road.  To avoid a

collision, Valdez drove the passenger jeep towards the shoulder of the road, west of his lane, but the owner-

type jeep continued to move toward the western lane and bumped the left side of the passenger

jeep. Petitioners alleged that it was Arnulfo Ramos who was careless and negligent in driving a motor

vehicle, which he very well knew had a mechanical defect. Hence, respondents had no cause of action

against petitioners.

During trial on the merits, respondents presented three witnesses: Alfredo Gamera, Dr. Emilio Joven and

Elvira Ramos.

 

Alfredo Gamera testified that at about 10:00 a.m. of April 22, 1995, he and his wife were seated at the

waiting shed along the national highway in Tablac, Candon, Ilocos Sur, waiting for a ride to the town proper of

Candon. He saw a motorcycle, driven by Police Officer 3 (PO3) Baltazar de Peralta, coming from the interior

part of Tablac and proceeding south toward the town proper. He also saw a southbound passenger jeep,

driven by Benigno Valdez, that wanted to overtake the motorcycle of PO3 De Peralta. As it tried to overtake

the motorcycle, the passenger jeep encroached on the lane of the northbound owner-type jeep driven by

Arnulfo Ramos, which resulted in the collision. Gamera stated that the point of impact was on the lane of the

vehicle of Arnulfo Ramos. Thereafter, the passenger jeep screeched to a halt at the fence of the Funtanilla

family. The owner-type jeep was destroyed and the windshield was broken.[6]

 

Gamera testified that he was about 100 meters from the place where the vehicular accident

occurred. The speed of the passenger jeep was about 70 kilometers per hour, while that of the owner-type

jeep was about 30 kilometers per hour.[7]

 

On cross-examination, it was found that Gamera went to the Police Station in Candon, Ilocos Sur to

execute his sworn statement only on May 30, 1992, one month after the incident and after respondent Elvira

Ramos talked to him. Moreover, at the preliminary investigation, Gamera did not mention in his sworn

statement that his wife was present during the incident, which fact was admitted by respondents counsel.

Further, at that time, Gamera was working as a jueteng collector at the same joint where the deceased Arnulfo

Ramos was also employed, and he had known Ramos for five years.[8]

 

Dr. Emilio Joven, a surgeon of the Lorma Medical Center, San Fernando, La Union, testified that

Arnulfo Ramos was admitted at the Lorma Hospital at about 12:50 p.m.on April 22, 1995. The latter sustained

external injuries, mostly on the left side of the body, which could have been caused by a vehicular

accident. The CT scan result of Arnulfo Ramos showed blood clots inside the brain, scattered small

hemorrhagic contusions, and swelling and blood clots on the base of the brain, which internal injuries caused

his death.[9] The immediate cause of death was acute cranio-cerebral injury.[10]

 

Respondent Elvira Ramos testified on the damages she incurred due to the vehicular accident, which

resulted in the death of her husband. She spent P33,513.00 for hospitalization and P30,000.00 for the

funeral. She prayed for the award of lost earnings, moral damages, exemplary damages, attorneys fees,

appearance fees and other costs of litigation.[11]

 

She also testified that the owner-type jeep was registered in the name of Matilde Tacad [12] of

Sto. Domingo, Ilocos Sur.[13]

 

Petitioners presented six witnesses, namely, PO3 Baltazar de Peralta, Special Police Officer 2 (SPO2)

Marvin Valdez, Herminigildo Pagaduan, Benigno Valdez, Emilia Achevara and Alfredo Achevara.

 

PO3 Baltazar de Peralta stated that he was assigned to Santiago, Ilocos Sur. He testified that at

about 9:00 a.m. of April 22, 1995, he was on board his motorcycle at the waiting shed erected on the eastern

side of the national highway in Tablac, Ilocos Sur. He was about to go southward, but waited a while to let a

southbound passenger jeep pass by. Then he followed behind the passenger jeep.

When the passenger jeep was about 75 meters away from him on the western lane of the national

highway, PO3 De Peralta spotted an owner-type jeep coming from the south on the eastern lane of the

road. He observed that the owner-type jeep was running in a zigzag manner as it went over the many holes on

the road. It did not slacken speed, causing the jeeps front wheels to wiggle, before it bumped the passenger

jeep coming from the north. The collision occurred on the lane of the passenger jeep, about two feet away

from the center line of the road, causing the owner-type jeep to turn around and return to its former position,

with its right wheel removed; while the passenger jeep veered to the right lane.[14]

 

After the collision, PO3 De Peralta assisted the owner-type jeeps driver, who fell to the ground, and helped

load him into a tricycle that would take him to the hospital. Then he went to the driver of the passenger jeep

and asked him what happened. The driver remarked, Even if you do not like to meet an accident, if that is

what happened, you cannot do anything. Thereafter, PO3 De Peralta proceeded on his way southward. He

reported the incident at the Police Station of Candon, Ilocos Sur.[15]

 

PO3 De Peralta testified that the accident happened on a straight part of the highway, but there were many

holes on the eastern lane. He stated that nothing impeded his view of the incident.[16]

 

PO3 De Peralta also testified that he had known respondents witness, Alfredo Gamera, who was

his barangay mate for 20 years. He declared that he never saw Gamera at the waiting shed or at the scene of

the incident on the morning of April 22, 1995.[17]

 

Investigator SPO2 Marvin Valdez of the Candon Police Station testified that at about 11:00 a.m. of April 22,

1995, he received a report of the vehicular accident that occurred at the national highway in Tablac, Candon,

Ilocos Sur, which was three kilometers from the police station. He proceeded to the site with some

companions. He saw a passenger jeep positioned diagonally on the western shoulder of the road facing

southwest, while an owner-type jeep was on the right lane. The driver of the owner-type jeep was seriously

injured and was brought to the hospital.[18]

SPO2 Valdez testified that the owner-type jeeps right tire was detached, and its left front portion was

damaged, while the passenger jeeps left tire was detached, and its left side portion was damaged.[19]

Herminigildo Pagaduan testified that at 7:00 a.m. of April 22, 1995, he was at the house

of Barangay Captain Victorino Gacusan of San Antonio, Candon, Ilocos Sur.Gacusan was then the overall

monitor of the jueteng  joint operation in Candon, Ilocos Sur. Pagaduan and Gacusan had earlier agreed to

attend the wake of an army captain at Tamorong, Candon, Ilocos Sur that morning.  While Pagaduan was

waiting for Barangay Captain Gacusan, the latter made a phone call requesting for a vehicle to take them to

Tamorong. Not long after, a yellow owner-type jeep arrived, which was driven by Arnulfo Ramos, an

employee of the jueteng  joint. All of them rode the jeep with Plate No. ACG 713. Barangay Captain Gacusan

was on the drivers seat, Pagaduan sat beside Gacusan, while Arnulfo Ramos and the others sat on the rear

seat.[20]

Pagaduan further testified that the group headed west to Tamorong via Darapidap. When they

reached a bridge, Barangay Captain Gacusan tried to increase the speed of the jeep, but it suddenly

wiggled. Gacusan stopped the jeep, and they all alighted from it. Gacusan told Arnulfo Ramos to have the

mechanical defect repaired at the auto shop.Hence, they did not proceed to Tamorong, but returned to the

house of Gacusan by tricycle. The next day, he heard from Gacusan that the jeep they had used in their

aborted trip to Tamorong met an accident.[21]

 

On cross-examination, Pagaduan testified that it was defense counsel Atty. Tudayan who requested

him to testify, because Atty. Tudayan had heard him discuss the incident with some jueteng employees.[22]

 

Petitioner Benigno Valdez testified that on April 22, 1995, he was driving the passenger jeep of his

aunt, Crescencia Achevara, on the national highway in Tablac, Candon, Ilocos Sur heading south, while the

owner-type jeep of Arnulfo Ramos was heading north. Valdez stated that the owner-type jeep was wiggling

and running fast in a zigzag manner, when its right front wheel got detached and the owner-type jeep

bumped the left side of his passenger jeep. Valdez swerved the passenger jeep to the western edge of the road

to avoid a collision, but to no avail, as it bumped a post. He passed out. When he regained consciousness, he

saw the driver of the owner-type jeep being rescued.[23]

Valdez surrendered himself to the Police Station in Candon, Ilocos Sur. He informed the police that

his vehicle was bumped by the owner-type jeep driven by Arnulfo Ramos, and he showed his drivers license

to the police.[24]

Valdez branded as false the testimony of respondents witness, Alfredo Gamera, that the former tried to

overtake the motorcycle of PO3 Baltazar de Peralta and encroached on the lane of the owner-type jeep driven

by Arnulfo Ramos. Valdez testified that before the vehicular accident, he saw a policeman following him, but

there was a tricycle between them. He denied that he was driving fast and stated that his speed at that time

registered only 20 on the speedometer.[25]

Petitioner Alfredo Achevara testified that Crescencia Achevara was his wife, while Benigno Valdez was the

nephew of his wife. He and his wife owned the passenger jeep with Plate No. DKK-995 that was involved in

the vehicular accident. Valdez had been the driver of the vehicle since 1992, although he drove it only during

daytime.[26]

 

Alfredo Achevara declared that before they employed Benigno Valdez to drive the passenger jeep, the

former exercised the diligence of a good father of a family in selecting, training and supervising the latter.[27] They required Valdez to show them his professional drivers license, and investigated his personal

background and training/experience as a driver. For his apprenticeship, they required him to drive from

Metro Manila to Tagaytay City, and then back to Metro Manila for a day.

Achevara stated that he knew Benigno Valdez since 1988. As their driver since 1992, Valdez never

committed any traffic violation. On April 22, 1995, he handed the key of the jeep to Valdez at about 7:30

a.m. at their barangay in Padaoil, Sta. Cruz, Ilocos Sur to fetch the sound system in Santiago, Ilocos Sur for

their fiesta. He told Valdez to avoid an accident, bring his license and avoid being hot-tempered.[28]

 

On February 14, 2000, the RTC of Narvacan, Ilocos Sur, Branch 22, rendered a Decision in Civil Case

No. 1431-N in favor of respondents.

The trial court found that the testimony of respondents witness, Alfredo Gamera,

was controverted by the testimony of PO3 Baltazar de Peralta and the finding of police investigator SPO2

Marvin Valdez. Gamera testified that the vehicular accident occurred because the passenger jeep tried to

overtake the motorcycle driven by PO3 Baltazar de Peralta and encroached on the lane of the owner-type jeep

driven by Arnulfo Ramos. Gameras testimony was, however, refuted by PO3 Baltazar de Peralta, who testified

that the passenger jeep did not overtake his motorcycle since he was the one following behind the passenger

jeep. Hence, the trial court concluded that the passenger jeep did not encroach on the lane of the owner-type

jeep on the left side of the road to allegedly overtake the motorcycle.

 

Moreover, Gamera testified that the collision occurred on the lane of the owner-type jeep, and one of

the wheels of the owner-type jeep was detached, so that it stayed immobile at the place of collision, about two

meters east from the center line of the national highway. However, SPO2 Marvin Valdez, who investigated the

incident, found both vehicles on the western lane of the national highway. Thus, the trial court stated that it

was undeniable that the collision took place on the western lane of the national highway, which was the

passenger jeeps lane.

 

The trial court held that, as contended by respondents, the doctrine of last clear chance was

applicable to this case. It cited Picart v. Smith,[29] which applied the said doctrine, thus, where both parties are

guilty of negligence, but the negligent act of one succeeds that of the other by an appreciable interval of time,

the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the

consequences, without reference to the prior negligence of the other party.

 

The trial court held that the driver of the passenger jeep, Benigno Valdez, having seen the risk

exhibited by the wiggling of the front wheels of the owner-type jeep, causingit to run in a zigzag manner,

should have parked his vehicle on the right shoulder of the road so that the mishap could have been

prevented. Since he ignored to take this reasonable precaution, the omission and/or breach of this duty on his

part was the constitutive legal cause of the mishap.[30]

The trial court stated that the doctrine of last clear chance, as applied to this case, implied a

contributory negligence on the part of the late Arnulfo Ramos, who knew of the mechanical defect of his

vehicle.

 

Further, the trial court held that the evidence of the Spouses Achevara failed to show that they

exercised due diligence in the selection and supervision of Benigno Valdez as driver of their passenger jeep.[31]

The dispositive portion of the trial courts Decision reads:  WHEREFORE, a decision is hereby rendered in favor of the plaintiffs and against the

defendants, the latter to account for and to pay jointly and solidarily to the plaintiffs, because of the contributory negligence on the part of the late Arnulfo Ramos, the reduced amount itemized as follows to wit:

1)      Thirty Thousand Pesos (P30,000.00) - part of the total receipted expenses at the hospitals;

 2)      Twenty Thousand Pesos (P20,000.00) - for funeral expenses; 3)      Sixty Thousand Pesos (P60,000.00) - for moral damages; 4)      Fifty Thousand Pesos (P50,000.00) - for exemplary damages;

 5)      Thirty Thousand Pesos (P30,000.00) - for attorney's fees, and

 

6)    Ten Thousand Pesos (P10,000.00) - for actual and other costs of litigation.[32]

 

The Spouses Achevara and Benigno Valdez appealed the trial courts Decision to the Court of Appeals.

 

In a Decision dated April 25, 2009, the Court of Appeals affirmed with modification the Decision of

the trial court, the dispositive portion of which reads:

WHEREFORE, premises considered, the appeal is hereby DISMISSED and the assailed February 14, 2000 Decision of the RTC of Narvacan, Ilocos Sur, Branch 22, in Civil Case No. 1431-N, is hereby AFFIRMED with MODIFICATION, that in addition to other awards made by the trial court, defendants-appellants are hereby ordered to pay, jointly and severally, the plaintiffs-appellees the sum of P50,000.00 as indemnity for the death of Arnulfo Ramos and the moral damages and attorney's fees awarded by the trial court are hereby REDUCED toP50,000.00 and P10,000.00, respectively, while the awards made by the trial court for exemplary damages and for actual and other costs of litigation are hereby DELETED.[33]

 

The motion for reconsideration of the Spouses Achevara and Benigno Valdez was denied for lack of

merit by the Court of Appeals in a Resolution[34] dated October 23, 2006.

 

Hence, the Spouses Achevara and Benigno Valdez filed this petition.

 

The main issue is whether or not petitioners are liable to respondents for damages incurred as a

result of the vehicular accident.

Petitioners contend that the doctrine of last clear chance is not applicable to this case, because the

proximate cause of the accident was the negligence of the late Arnulfo Ramos in knowingly driving the

defective owner-type jeep. When the front wheel of the owner-type jeep was removed, the said jeep suddenly

encroached on the western lane and bumped the left side of the passenger jeep driven by Benigno

Valdez. Considering that the interval between the time the owner-type jeep encroached on the lane

of Valdez to the time of impact was only a matter of seconds, Valdez no longer had the opportunity to avoid

the collision. Pantranco North Express Inc. v. Besa[35] held that the doctrine of last clear chance can never apply

where the party charged is required to act instantaneously, and if the injury cannot be avoided by the

application of all means at hand after the peril is or should have been discovered.

 

Petitioners assert that Arnulfo Ramos negligence in driving the owner-type jeep − despite knowledge

of its mechanical defect, and his failure to have it repaired first before driving, to prevent damage to life and

property − did not only constitute contributory negligence. Ramos negligence was the immediate and

proximate cause of the accident, which resulted in his untimely demise. Benigno Valdez should not be made

to suffer the unlawful and negligent acts of Ramos. Since forseeability is the fundamental basis of

negligence, Valdez could not have foreseen that an accident might happen due to the mechanical defect in the

vehicle of Ramos. It was Ramos alone who fully knew and could foresee that an accident was likely to occur if

he drove his defective jeep, which indeed happened. Hence, the proximate cause of the vehicular accident was

the negligence of Ramos in driving a mechanically defective vehicle.

In short, petitioners contend that Arnulfo Ramos own negligence in knowingly driving a mechanically

defective vehicle was the immediate and proximate cause of his death, and that the doctrine of last clear

chance does not apply to this case.

 

Petitioners arguments are meritorious.

 

The Court notes that respondents version of the vehicular accident was rebutted by petitioners. The

testimony of respondents witness, Alfredo Gamera, that the vehicular accident occurred because

the passenger jeep driven by Benigno Valdez tried to overtake the motorcycle driven by PO3 Baltazar de

Peralta and encroached on the lane of the owner-type jeep, which resulted in the collision, was refuted

by PO3 Baltazar de Peralta, who testified that the passenger jeep did not overtake his motorcycle since he

was the one following behind the passenger jeep. Hence, the trial court correctly concluded that the

passenger jeep did not encroach on the lane of the owner-type jeep on the left side of the road to allegedly

overtake the motorcycle.

 

Gamera also testified that the collision took place on the lane of the owner-type jeep, and one

of its wheels was detached and stayed immobile at the place of collision, about two meters east the center line

of the national highway. However, SPO2 Marvin Valdez, who investigated the incident, found both vehicles on

the western lane of the national highway. The owner-type jeep was diagonally positioned on the right,

western lane; while the passenger jeep was on the western shoulder of the road, diagonally facing

southwest. The trial court, therefore, correctly held that it was undeniable that the collision took place on the

western lane of the national highway or the lane of the passenger jeep driven by Benigno Valdez. It was the

owner-type jeep driven by Arnulfo Ramos that encroached on the lane of the passenger jeep.

It must be pointed out that Herminigildo Pagaduan testified that in the early morning of April 22,

1995, he and Barangay Captain Gacusan, along with Arnulfo Ramos, aborted their trip to Tamorong, Candon,

Ilocos Sur, using the same owner-type jeep because it was wiggling. Ramos was advised to have the

mechanical defect repaired. Yet, later in the morning, Ramos was driving the owner-type jeep on the national

highway in Candon. Benigno Valdez testified that the owner-type jeep was wiggling and running fast in a

zigzag manner when its right front wheel got detached, and the owner-type jeep suddenly bumped the

passenger jeep he was driving, hitting the left side of the passenger jeep opposite his

seat. Although Valdez swerved the passenger jeep to the western edge of the road, it was still hit by the

owner-type jeep.

 Foreseeability is the fundamental test of negligence. To be negligent, a defendant must have acted or

failed to act in such a way that an ordinary reasonable man would have realized that certain interests of

certain persons were unreasonably subjected to a general but definite class of risks.[36]

 Seeing that the owner-type jeep was wiggling and running fast in a zigzag manner as it travelled on

the opposite side of the highway, Benigno Valdez was made aware of the danger ahead if he met the owner-

type jeep on the road. Yet he failed to take precaution by immediately veering to the rightmost portion of the

road or by stopping the passenger jeep at the right shoulder of the road and letting the owner-type jeep pass

before proceeding southward; hence, the collision occurred. The Court of Appeals correctly held that Benigno

Valdez was guilty of inexcusable negligence by neglecting to take such precaution, which a reasonable and

prudent man would ordinarily have done under the circumstances and which proximately caused injury to

another.

 On the other hand, the Court also finds Arnulfo Ramos guilty of gross negligence for knowingly

driving a defective jeep on the highway. An ordinarily prudent man would know that he would be putting

himself and other vehicles he would encounter on the road at risk for driving a mechanically defective

vehicle. Under the circumstances, a prudent man would have had the owner-type jeep repaired or would have

stopped using it until it was repaired. Ramos was, therefore, grossly negligent in continuing to drive on the

highway the mechanically defective jeep, which later encroached on the opposite lane and bumped the

passenger jeep driven by Benigno Valdez. Gross negligence is the absence of care or diligence as to amount to

a reckless disregard of the safety of persons or property.[37] It evinces a thoughtless disregard of

consequences without exerting any effort to avoid them.[38]

 The acts of negligence of Arnulfo Ramos and Benigno Valdez were contemporaneous when Ramos

continued to drive a wiggling vehicle on the highway despite knowledge of its mechanical defect, while Valdez

did not immediately veer to the rightmost side of the road upon seeing the wiggling vehicle of Ramos −

perhaps because it still kept to its lane and Valdez did not know the extent of its mechanical defect.  However,

when the owner-type jeep encroached on the lane of the passenger jeep, Valdez realized the peril at hand and

steered the passenger jeep toward the western shoulder of the road to avoid a collision. It was at this point

that it was perceivable that Ramos must have lost control of his vehicle, and that it was Valdez who had the

last opportunity to avoid the collision by swerving the passenger jeep towards the right shoulder of the road.

 The doctrine of last clear chance applies to a situation where the plaintiff was guilty of prior or

antecedent negligence, but the defendant − who had the last fair chance to avoid the impending harm and

failed to do so − is made liable for all the consequences of the accident, notwithstanding the prior negligence

of the plaintiff.[39] However, the doctrine does not apply where the party charged is required to act

instantaneously, and the injury cannot be avoided by the application of all means at hand after the peril is or

should have been discovered.[40]

 The doctrine of last clear chance does not apply to this case, because even if it can be said that it

was Benigno Valdez who had the last chance to avoid the mishap when theowner-type jeep encroached on

the western lane of the passenger jeep, Valdez no longer had the opportunity to avoid the collision.  The

Answer of petitioners stated that when the owner-type jeep encroached on the lane of the passenger jeep,

Benigno Valdez maneuvered his vehicle towards the western shoulder of the road to avoid a collision, but the

owner-type jeep driven by Ramos continued to move to the western lane and bumped the left side of the

passenger jeep. Thus, petitioners assert in their Petition that considering that the time the owner-type jeep

encroached on the lane of Valdez to the time of impact was only a matter of seconds, he no longer had the

opportunity to avoid the collision.Although the records are bereft of evidence showing the exact distance

between the two vehicles when the owner-type jeep encroached on the lane of the passenger jeep, it must

have been near enough, because the passenger jeep driven by Valdez was unable to avoid the collision. Hence,

the doctrine of last clear chance does not apply to this case.

 

Article 2179 of the Civil Code provides:

 When the plaintiffs own negligence was the immediate and proximate cause of his

injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.[41]

  

In this case, both Arnulfo Ramos and Benigno Valdez failed to exercise reasonable care and caution

that an ordinarily prudent man would have taken to prevent the vehicular accident.  Since the gross

negligence of Arnulfo Ramos and the inexcusable negligence of Benigno Valdez were the proximate cause of

the vehicular accident, respondents cannot recover damages pursuant to Article 2179 of the Civil Code.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No.

67027, dated April 25, 2006, and its Resolution dated October 23, 2006, are hereby REVERSED and SET

ASIDE.

 

No costs.

 SO ORDERED.

Republic of the Philippines

Supreme Court

Manila   SECOND DIVISION

 PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN SAGA,Petitioners,  -versus-  PURIFICACION VIZCARA,MARIVIC VIZCARA,CRESENCIA A. NATIVIDAD,HECTOR VIZCARA, JOEL VIZCARA and DOMINADOR ANTONIO,Respondents. 

G.R. No. 190022 Present: CARPIO, J.,Chairperson,VILLARAMA, JR.,*

PEREZ,SERENO, andREYES, JJ.  Promulgated: February 15, 2012 

x------------------------------------------------------------------------------------x DECISION 

REYES, J.:

 

Nature of the Petition

 

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,

seeking to annul and set aside the Decision[1] dated July 21, 2009 of the Court of Appeals (CA) in CA-G.R. CV

No. 90021, which affirmed with modification the Decision[2] dated March 20, 2007 of the Regional Trial Court

(RTC), Branch 40, Palayan City, and Resolution[3] dated October 26, 2009, which denied the petitioners

motion for reconsideration.

 

The Antecedent Facts

 

On May 14, 2004, at about three oclock in the morning, Reynaldo Vizcara (Reynaldo) was driving a

passenger jeepney headed towards Bicol to deliver onion crops, with his companions, namely, Cresencio

Vizcara (Cresencio), Crispin Natividad (Crispin), Samuel Natividad (Samuel), Dominador Antonio

(Dominador) and Joel Vizcara (Joel). While crossing the railroad track in Tiaong, Quezon, a Philippine

National Railways (PNR) train, then being operated by respondent Japhet Estranas (Estranas), suddenly

turned up and rammed the passenger jeepney. The collision resulted to the instantaneous death of Reynaldo,

Cresencio, Crispin, and Samuel. On the other hand, Dominador and Joel, sustained serious physical injuries.[4]

 

At the time of the accident, there was no level crossing installed at the railroad crossing. Additionally, the

Stop, Look and Listen signage was poorly maintained. The Stop signage was already faded while the Listen

signage was partly blocked by another signboard.[5]

 

On September 15, 2004, the survivors of the mishap, Joel and Dominador, together with the heirs of the

deceased victims, namely, Purificacion Vizcara, Marivic Vizcara, Cresencia Natividad and Hector Vizcara, filed

an action for damages against PNR, Estranas and Ben Saga, the alternate driver of the train, before the RTC of

Palayan City. The case was raffled to Branch 40 and was docketed as Civil Case No. 0365-P. In their complaint,

the respondents alleged that the proximate cause of the 

fatalities and serious physical injuries sustained by the victims of the accident was the petitioners gross

negligence in not providing adequate safety measures to prevent injury to persons and properties. They

pointed out that in the railroad track of Tiaong, Quezon where the accident happened, there was no level

crossing bar, lighting equipment or bell installed to warn motorists of the existence of the track and of the

approaching train. They concluded their complaint with a prayer for actual, moral and compensatory

damages, as well as attorneys fees.[6]

 

For their part, the petitioners claimed that they exercised due diligence in operating the train and monitoring

its roadworthiness. They asseverate that right before the collision, Estranas was driving the train at a

moderate speed. Four hundred (400) meters away from the railroad crossing, he started blowing his horn to

warn motorists of the approaching train. When the train was only fifty (50) meters away from the

intersection, respondent Estranas noticed that all vehicles on both sides of the track were already at a full

stop.Thus, he carefully proceeded at a speed of twenty-five (25) kilometers per hour, still blowing the trains

horn. However, when the train was already ten (10) meters away from the intersection, the passenger

jeepney being driven by Reynaldo suddenly crossed the tracks. Estranas immediately stepped on the brakes

to avoid hitting the jeepney but due to the sheer weight of the train, it did not instantly come to a complete

stop until the jeepney was dragged 20 to 30 meters away from the point of collision.[7]

 

The Ruling of the Trial Court

 

After trial on the merits, the RTC rendered its Decision[8] dated March 20, 2007, ruling in favor of the

respondents, the dispositive portion of which reads:

 

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Philippine National Railways Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and severally pay the following amounts to:

 

1. a) PURIFICACION VIZCARA:

1)      P50,000.00, as indemnity for the death of Reynaldo Vizcara;

2)      P35,000.00, for funeral expenses;

3)      P5,000.00 for re-embalming expenses;

4)      P40,000.00 for wake/interment expenses;

5)      P300,000.00 as reimbursement for the value of the jeepney with license plate no. DTW-387;

6)      P200,000.00 as moral damages;

7)      P100,000.00 as exemplary damages; and

8)      P20,000.00 for Attorneys fees.

 

b) MARIVIC VIZCARA:

1)      P50,000.00, as indemnity for the death of Cresencio Vizcara;

2)      P200,000.00 as moral damages;

3)      P100,000.00 as exemplary damages; and

4)      P20,000.00 for Attorneys fees.

 

c) HECTOR VIZCARA:

1)      P50,000.00 as indemnity for the death of Samuel Vizcara;

2)      P200,000.00 as moral damages;

3)      P100,000.00 as exemplary damages; and

4)      P20,000.00 for Attorneys fees.

 

d) CRESENCIA NATIVIDAD:

 

1)      P50,000.00 as indemnity for the death of Crispin Natividad;

2)      P200,000.00 as moral damages;

3)      P100,000.00 as exemplary damages; and

4)      P20,000.00 for Attorneys fees.

 

e) JOEL VIZCARA

 

1) P9,870.00 as reimbursement for his actual expenses;

2) P50,000.00 as moral damages;

3) P25,000.00 as exemplary damages; and

4) P10,000.00 for Attorneys fees.

 

f) DOMINADOR ANTONIO

 

1)      P63,427.00 as reimbursement for his actual expenses;

2)      P50,000.00 as moral damages;

3)      P25,000.00 as exemplary damages; and

4)      P10,000.00 for Attorneys fees.

 

and

 

2. Costs of suit.

 

SO ORDERED.[9]

 

 

The Ruling of the CA

 

Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently, on July 21, 2009, the CA

rendered the assailed decision, affirming the RTC decision with modification with respect to the amount of

damages awarded to the respondents. The CA disposed, thus:

 

WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision is AFFIRMED WITH MODIFICATION, as follows:

 

(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for wake/interment expenses to PURIFICACION VIZCARA is deleted. In lieu thereof, P25,000.00 as temperate damages is awarded;

 

(2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P200,000.00 toP100,000.00 each while moral damages awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P50,000.00 to P25,000.00;

 

(3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P100,000.00 toP50,000.00 each while exemplary damages awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and

 

(4) The award for attorneys fees in favor of the Appellees as well as the award of P300,000.00 to Appellee PURIFICACION as reimbursement for the value of the jeepney is DELETED.

 

SO ORDERED.[10]

 

 

In the assailed decision, the CA affirmed the RTCs finding of negligence on the part of the petitioners.

It concurred with the trial court's conclusion that petitioner PNR's failure to install sufficient safety devices in

the area, such as flagbars or safety railroad bars and signage, was the proximate cause of the accident.

Nonetheless, in order to conform with established jurisprudence, it modified the monetary awards to the

victims and the heirs of those who perished due to the collision.

 

The petitioners filed a Motion for Reconsideration[11] of the decision of the CA. However, in a

Resolution[12] dated October 26, 2009, the CA denied the same.

 

Aggrieved, the petitioners filed the present petition for review on certiorari, raising the following

grounds:

 

I

 

THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF THE PETITIONERS;

 

II

 

THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE FINDS NO APPLICATION IN THE INSTANT CASE;

 

III

 

THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS OR ERRED IN NOT FINDING AT THE LEAST, CONTRIBUTORY NEGLIGENCE ON THE PART OF THE RESPONDENTS.[13]

 

 

The petitioners maintain that the proximate cause of the collision was the negligence and

recklessness of the driver of the jeepney. They argue that as a professional driver, Reynaldo is presumed to be

familiar with traffic rules and regulations, including the right of way accorded to trains at railroad crossing

and the precautionary measures to observe in traversing the same. However, in utter disregard of the right of

way enjoyed by PNR trains, he failed to bring his jeepney to a full stop before crossing the railroad track and

thoughtlessly followed the ten-wheeler truck ahead of them. His failure to maintain a safe distance between

the jeepney he was driving and the truck ahead of the same prevented him from seeing the PNR signage

displayed along the crossing.[14]

 

In their Comment,[15] the respondents reiterate the findings of the RTC and the CA that the

petitioners' negligence in maintaining adequate and necessary public safety devices in the area of the

accident was the proximate cause of the mishap. They asseverate that if there was only a level crossing bar,

warning light or sound, or flagman in the intersection, the accident would not have happened. Thus, there is

no other party to blame but the petitioners for their failure to ensure that adequate warning devices are

installed along the railroad crossing.[16]

 

This Courts Ruling

 

The petition lacks merit.

 

The petitioners negligence was the proximate cause of the accident.

 

 

Article 2176 of the New Civil Code prescribes a civil liability for damages caused by a person's act or omission

constituting fault or negligence. It states:

 

Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this chapter.

 

 

In Layugan v. Intermediate Appellate Court,[17] negligence was defined as the omission to do something which

a reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would do,

or the doing of something which a prudent and reasonable man would not do. It is the failure to observe for

the protection of the interests of another person, that degree of care, precaution, and vigilance which the

circumstances justly demand, whereby such other person suffers injury.[18] To determine the existence of

negligence, the time-honored test was: Did the defendant in doing the alleged negligent act use that

reasonable care and caution which an ordinarily prudent person would have used in the same situation? If

not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the

imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case

is not determined by reference to the personal judgment of the actor in the situation before him. The law

considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and

prudence and determines liability by that.[19]

 

In the instant petition, this Court is called upon to determine whose negligence occasioned the ill-

fated incident. The records however reveal that this issue had been rigorously discussed by both the RTC and

the CA. To emphasize, the RTC ruled that it was the petitioners failure to install adequate safety devices at the

railroad crossing which proximately caused the collision. This finding was affirmed by the CA in its July 21,

2009 Decision. It is a well-established rule that factual findings by the CA are conclusive on the parties and

are not reviewable by this Court. They are entitled to great weight and respect, even finality, especially when,

as in this case, the CA affirmed the factual findings arrived at by the trial court.[20]

 

Furthermore, in petitions for review on certiorari, only questions of law may be put into issue.

Questions of fact cannot be entertained.[21] To distinguish one from the other, a question of law exists when

the doubt or difference centers on what the law is on a certain state of facts. A question of fact, on the other

hand, exists if the doubt centers on the truth or falsity of the alleged facts. [22] Certainly, the finding of

negligence by the RTC, which was affirmed by the CA, is a question of fact which this Court cannot pass upon

as this would entail going into the factual matters on which the negligence was based.[23] Moreover, it was not

shown that the present case falls under any of the recognized exceptions[24] to the oft repeated principle

according great weight and respect to the factual findings of the trial court and the CA.

 

At any rate, the records bear out that the factual circumstances of the case were meticulously

scrutinized by both the RTC and the CA before arriving at the same finding of negligence on the part of the

petitioners, and we found no compelling reason to disturb the same. Both courts ruled that the petitioners fell

short of the diligence expected of it, taking into consideration the nature of its business, to forestall any

untoward incident. In particular, the petitioners failed to install safety railroad bars to prevent motorists from

crossing the tracks in order to give way to an approaching train. Aside from the absence of a crossing bar, the

Stop, Look and Listen signage installed in the area was poorly maintained, hence, inadequate to alert the

public of the impending danger. A reliable signaling device in good condition, not just a dilapidated Stop, Look

and Listen signage, is needed to give notice to the public. It is the responsibility of the railroad company to

use reasonable care to keep the signal devices in working order. Failure to do so would be an indication of

negligence.[25] Having established the fact of negligence on the part of the petitioners, they were rightfully

held liable for damages.

 

There was no contributory negligence on the part of the respondents.

 

 

As to whether there was contributory negligence on the part of the respondents, this court rule in the

negative. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to

the harm he has suffered, which falls below the standard which he is required to conform for his own

protection. It is an act or omission amounting to want of ordinary care on the part of the person injured

which, concurring with the defendants negligence, is the proximate cause of the injury.[26] Here, we cannot see

how the respondents could have contributed to their injury when they were not even aware of the

forthcoming danger. It was established during the trial that the jeepney carrying the respondents was

following a ten-wheeler truck which was only about three to five meters ahead. When the truck proceeded to

traverse the railroad track, Reynaldo, the driver of the jeepney, simply followed through. He did so under the

impression that it was safe to proceed. It bears noting that the prevailing circumstances immediately before

the collision did not manifest even the slightest indication of an imminent harm. To begin with, the truck they

were trailing was able to safely cross the track. Likewise, there was no crossing bar to prevent them from

proceeding or, at least, a stoplight or signage to forewarn them of the approaching peril. Thus, relying on his

faculties of sight and hearing, Reynaldo had no reason to anticipate the impending danger.[27] He proceeded to

cross the track and, all of a sudden, his jeepney was rammed by the train being operated by the petitioners.

Even then, the circumstances before the collision negate the imputation of contributory negligence on the

part of the respondents. What clearly appears is that the accident would not have happened had the

petitioners installed reliable and adequate safety devices along the crossing to ensure the safety of all those

who may utilize the same.

 

At this age of modern transportation, it behooves the PNR to exert serious efforts to catch up with the

trend, including the contemporary standards in railroad safety. As an institution established to alleviate

public transportation, it is the duty of the PNR to promote the safety and security of the general riding public

and provide for their convenience, which to a considerable degree may be accomplished by the installation of

precautionary warning devices. Every railroad crossing must be installed with barriers on each side of the

track to block the full width of the road until after the train runs past the crossing. To even draw closer

attention, the railroad crossing may be equipped with a device which rings a bell or turns on a signal light to

signify the danger or risk of crossing. It is similarly beneficial to mount advance warning signs at the railroad

crossing, such as a reflectorized crossbuck sign to inform motorists of the existence of the track, and a stop,

look and listen signage to prompt the public to take caution. These warning signs must be erected in a place

where they will have ample lighting and unobstructed visibility both day and night. If only these safety

devices were installed at the Tiaong railroad crossing and the accident nevertheless occurred, we could have

reached a different disposition in the extent of the petitioners liability.

 

 

The exacting nature of the responsibility of railroad companies to secure public safety by the

installation of warning devices was emphasized in Philippine National Railways v. Court of Appeals,[28] thus:

 

[I]t may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both to the operation of trains and to the maintenance of the crossings. Moreover, every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains. The failure of the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it, because public safety demands that said device or equipment be installed.[29]

 

 

The responsibility of the PNR to secure public safety does not end with the installation of safety equipment

and signages but, with equal measure of accountability, with the upkeep and repair of the same. Thus, in  Cusi

v. Philippine National Railways,[30] we held:

 

Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling public has the right to rely on such warning devices to put them on their guard and take the necessary precautions before crossing the tracks. A need, therefore, exists for the railroad company to use reasonable care to keep such devices in good condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has been held that if a railroad company maintains a signalling device at a crossing to give warning of the approach of a train, the failure of the device to operate is generally held to be evidence of negligence, which maybe considered with all the circumstances of the case in determining whether the railroad company was negligent as a matter of fact. [31]

  

The maintenance of safety equipment and warning signals at railroad crossings is equally important as their

installation since poorly maintained safety warning devices court as much danger as when none was installed

at all. The presence of safety warning signals at railroad crossing carries with it the presumption that they are

in good working condition and that the public may depend on them for assistance. If they happen to be

neglected and inoperative, the public may be misled into relying on the impression of safety they normally

convey and eventually bring injury to themselves in doing so.

 

The doctrine of last clear chance is not applicable.

 

 

Finally, the CA correctly ruled that the doctrine of last clear chance is not applicable in the instant case. The

doctrine of last clear chance provides that where both parties are negligent but the negligent act of one is

appreciably later in point of time than that of the other, or where it is impossible to determine whose fault or

negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid

the impending harm but failed to do so, is chargeable with the consequences arising therefrom. Stated

differently, the rule is that the antecedent negligence of a person does not preclude recovery of damages

caused by the supervening negligence of the latter, who had the last fair chance to prevent the impending

harm by the exercise of due diligence.[32] To reiterate, the proximate cause of the collision was the petitioners

negligence in ensuring that motorists and pedestrians alike may safely cross the railroad track. The

unsuspecting driver and passengers of the jeepney did not have any participation in the occurrence of the

unfortunate incident which befell them. Likewise, they did not exhibit any overt act manifesting disregard for

their own safety. Thus, absent preceding negligence on the part of the respondents, the doctrine of last clear

chance cannot be applied.

 

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals dated July

21, 2009 in CA-G.R. CV No. 90021 is hereby AFFIRMED.

 

SO ORDERED. 

EMERGENCY RULE

FIRST DIVISION

[G.R. No. 115024. February 7, 1996]

MA. LOURDES VALENZUELA, petitioner, vs. COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC., respondents.

[G.R. No. 117944. February 7, 1996]

RICHARD LI, petitioner, vs. COURT OF APPEALS and MA. LOURDES VALENZUELA, respondents.

D E C I S I O N

KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial court are succinctly summarized by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a vehicular accident.

Plaintiffs version of the accident is as follows: At around 2:00 in the morning of June 24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542  from her restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home in that cars condition, she parked along the sidewalk, about 1 feet away, put on her emergency lights, alighted from the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of defendant Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the windshield of the car of the defendant, which was destroyed, and then fell to the ground. She was pulled out from under defendants car. Plaintiffs left leg was severed up to the middle of her thigh, with only some skin and sucle connected to the rest of the body. She was brought to the UERM Medical Memorial Center where she was found to have a traumatic amputation, leg, left up to distal thigh (above knee). She was confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg. The expenses for the hospital confinement (P 120,000.00) and the cost of the artificial leg (P27,000.00) were paid by defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in the amount of P100,000.00 and other medical and related expenses amounting to a total of P180,000.00, including loss of expected earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph; considering that it was raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San Juan, with a car coming from the

opposite direction, travelling at 80 kph, with full bright lights. Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle, and bumped plaintiffs car, which he did not see because it was midnight blue in color, with no parking lights or early warning device, and the area was poorly lighted. He alleged in his defense that the left rear portion of plaintiffs car was protruding as it was then at a standstill diagonally on the outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of plaintiffs witness that after being bumped the car of the plaintiff swerved to the right and hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch of the three cars involved in the accident, testified that the plaintiffs car was near the sidewalk; this witness did not remember whether the hazard lights of plaintiffs car were on, and did not notice if there was an early warning device; there was a street light at the corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e. things can be seen (p. 16, tsn, Oct. 28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and opened the trunk compartment, defendants car came approaching very fast ten meters from the scene; the car was zigzagging. The rear left side of plaintiffs car was bumped by the front right portion of defendants car; as a consequence, the plaintiffs car swerved to the right and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of defendants car, which was destroyed, and landed under the car. He stated that defendant was under the influence of liquor as he could smell it very well (pp. 43, 79, tsn., June 17, 1991).

After trial, the lower court sustained the plaintiffs submissions and found defendant Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held Alexander Commercial, Inc., Lis employer, jointly and severally liable for damages pursuant to Article 2180. It ordered the defendants to jointly and severally pay the following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a result of her severed left leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiffs Bistro La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month, as unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the date of this judgment; and (c) P30,000.00, a month, for unrealized profits in plaintiffs two (2) beauty salons from July, 1990 until the date of this decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages,

5. P60,000.00, as reasonable attorneys fees; and

6. Costs.

As a result of the trial courts decision, defendants filed an Omnibus Motion for New Trial and for Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to show that the point of impact, as depicted by the pieces of glass/debris from the parties cars, appeared to be at the center of the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an appeal with the respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals found that there was ample basis from the evidence of record for the trial courts finding that the plaintiffs car was properly parked at the right, beside the sidewalk when it was bumped by defendants car.[1]Dismissing the defendants argument that the plaintiffs car was improperly parked, almost at the center of the road, the respondent court noted that evidence which was supposed to prove that the car was at or near center of the

right lane was never presented during the trial of the case.[2] The respondent court furthermore observed that:

Defendant Lis testimony that he was driving at a safe speed of 55 km./hour is self serving; it was not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1990 when his attention was caught by a beautiful lady (referring to the plaintiff) alighting from her car and opening the trunk compartment; he noticed the car of Richard Li approaching very fast ten (10) meters away from the scene; defendants car was zigzagging, although there were no holes and hazards on the street, and bumped the leg of the plaintiff who was thrown against the windshield of defendants car, causing its destruction. He came to the rescue of the plaintiff, who was pulled out from under defendants car and was able to say hurting words to Richard Li because he noticed that the latter was under the influence of liquor, because he could smell it very well (p. 36, et. seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970s, but did not know either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the Court of Appeals, in its decision, however, absolved the Lis employer, Alexander Commercial, Inc. from any liability towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00. Finding justification for exemplary damages, the respondent court allowed an award of P50,000.00 for the same, in addition to costs, attorneys fees and the other damages. The Court of Appeals, likewise, dismissed the defendants counterclaims.[3]

Consequently, both parties assail the respondent courts decision by filing two separate petitions before this Court. Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the proximate cause of the accident was Ma. Lourdes Valenzuelas own negligence. Alternatively, he argues that in the event that this Court finds him negligent, such negligence ought to be mitigated by the contributory negligence of Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent courts decision insofar as it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and insofar as it reduces the amount of the actual and moral damages awarded by the trial court.[4]

As the issues are intimately related, both petitions are hereby consolidated. It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it, in effect, attempts to have this Court review are factual findings of the trial court, as sustained by the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the early morning hours of June 24, 1990. This we will not do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon us, and this Court will not normally disturb such factual findings unless the findings of fact of the said court are palpably unsupported by the evidence on record or unless the judgment itself is based on a misapprehension of facts.[5]

In the first place, Valenzuelas version of the incident was fully corroborated by an uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On trial, he testified that he observed a car being driven at a very fast speed, racing towards the general direction of Araneta Avenue.[6] Rodriguez further added that he was standing in front of his establishment, just ten to twenty feet away from the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the windshield of the defendants Mitsubishi Lancer, from where she eventually fell under the defendants car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the smell of liquor had alighted from the offending vehicle in order to survey the incident.[7] Equally important, Rodriguez declared that he observed Valenzuelas car parked parallel and very near the sidewalk, [8] contrary to Lis allegation that Valenzuelas car was close to the center of the right lane. We agree that as between Lis self-serving asseverations and the observations of a witness who did not even know the accident victim personally and who immediately gave a statement of the incident similar to his testimony to the investigator immediately after the incident, the latters testimony deserves greater weight. As the court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not prepared to set aside the trial courts reliance on the testimony of Rodriguez negating defendants assertion that he was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-examination and no attempt was made to question his competence or the accuracy of his statement that defendant was driving very fast. This was the same statement he gave to the police investigator after the incident, as told to a newspaper report (Exh. P). We see no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez testimony are not borne out by an examination of the testimony. Rodriguez testified that the scene of the accident was across the street where his beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident transpired immediately in front of his establishment. The ownership of the Lambingan sa Kambingan is not material; the business is registered in the name of his mother, but he explained that he owns the establishment (p. 5, tsn., June 20, 1991).

Moreover, the testimony that the streetlights on his side of Aurora Boulevard were on the night the accident transpired (p. 8) is not necessarily contradictory to the testimony of Pfc. Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman Street (p. 45, tsn., Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain and the rain has stopped and he was outside his establishment at the time the accident transpired (pp. 64-65, tsn., June 17, 1991). This was consistent with plaintiffs testimony that it was no longer raining when she left Bistro La Conga (pp. 10-11, tsn., April 29, 1991). It was defendant Li who stated that it was raining all the way in an attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn., Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the scene only in response to a telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguezs testimony that would impair the essential integrity of his testimony or reflect on his honesty. We are compelled to affirm the trial courts acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Lis testimony was peppered with so many inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to provide a version, obviously self-serving, which would exculpate him from any and all liability in the incident. Against Valenzuelas corroborated claims, his allegations were neither backed up by other witnesses nor by the circumstances proven in the course of trial. He claimed that he was driving merely at a speed of  55 kph. when out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiffs car. He alleged that upon seeing this sudden apparition he put on his brakes to no avail as the road was slippery.[9]

One will have to suspend disbelief in order to give credence to Lis disingenuous and patently self-serving asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a car traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing conditions of the road if he were alert - as every driver should be - to those conditions. Driving exacts a more than usual toll on the senses. Physiological fight or flight [10] mechanisms are at work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc.[11] Lis failure to react in a manner which would have avoided the accident could therefore have been only due to either or both of the two factors: 1) that he was driving at a very fast speed as testified by Rodriquez; and 2) that he was under the influence of alcohol.[12] Either factor working independently would have diminished his responsiveness to road conditions, since normally he would have slowed down prior to reaching Valenzuelas car, rather than be in a situation forcing him to suddenly apply his brakes. As the trial court noted (quoted with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in front of him, which was plaintiffs car, indicating, again, thereby that, indeed, he was driving very fast, oblivious of his

surroundings and the road ahead of him, because if he was not, then he could not have missed noticing at a still far distance the parked car of the plaintiff at the right side near the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the plaintiff who was then standing at the left rear edge of her car.

Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw the plaintiffs car in front of him, but that it failed as the road was wet and slippery, this goes to show again, that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could have easily completely stopped his car, thereby avoiding the bumping of the plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running slow, as he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road, he could have avoided hitting the plaintiff by the mere expedient or applying his brakes at the proper time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to what he told the police immediately after the accident and is, therefore, more believable, that he did not actually step on his brakes, but simply swerved a little to the right when he saw the on-coming car with glaring headlights, from the opposite direction, in order to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was properly parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a little to the right in order to safely avoid a collision with the on-coming car, considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted white paint, and there is plenty of space for both cars, since her car was running at the right lane going towards Manila and the on-coming car was also on its right lane going to Cubao.[13]

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence in parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. [14] Based on the foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for her own protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions.[15] Under the emergency rule adopted by this Court in Gan vs Court of Appeals,[16] an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence.[17]

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid hitting two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate Court,[18]  that the driver therein, Jose Koh, adopted the best means possible in the given situation to avoid hitting the children. Using the emergency rule the court concluded that Koh, in spite of the fact that he was in the wrong lane when the collision with an oncoming truck occurred, was not guilty of negligence.[19]

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such

cases is dictated not exclusively by the suddenness of the event which absolutely negates thoughtful care, but by the over-all nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark Street or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists in danger, she did what was best under the situation. As narrated by respondent court:

She stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about 1 feet away, behind a Toyota Corona Car.[20] In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuelas car was parked very close to the sidewalk.[21] The sketch which he prepared after the incident showed Valenzuelas car partly straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This fact was itself corroborated by the testimony of witness Rodriguez.[22]

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency and could not be considered to have contributed to the unfortunate circumstances which eventually led to the amputation of one of her lower extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her own making, and it was evident that she had taken all reasonable precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the accident. Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others.[23] It is the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.[24] We stressed, in Corliss vs. Manila Railroad Company,[25] that negligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour had settled into a drizzle rendering the street slippery. There is ample testimonial evidence on record to show that he was under the influence of liquor. Under these conditions, his chances of effectively dealing with changing conditions on the road were significantly lessened. As Prosser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles and persons on the highway, and of other vehicles at intersections, such as one who sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount to negligence. [26]

Lis obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of his own making.

We now come to the question of the liability of Alexander Commercial, Inc. Lis employer. In denying liability on the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Lis testimony, that the visit was in connection with official matters. His functions as assistant manager sometimes required him to perform work outside the office as he has to visit buyers and company clients, but he admitted that on the night of the accident he came from BF Homes Paraaque he did not have business from the company (pp. 25-26, tsn, Sept. 23, 1991). The use ofthe company

car was partly required by the nature of his work, but the privilege of using it for non-official business is a benefit, apparently referring to the fringe benefits attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective duties, the basis of which liability is not respondeat superior, but the relationship of pater familias, which theory bases the liability of the master ultimately on his own negligence and not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an employer may be held liable for the negligence of his employee, the act or omission which caused damage must have occurred while an employee was in the actual performance of his assigned tasks or duties (Francis High School vs.Court of Appeals, 194 SCRA 341). In defining an employers liability for the acts done within the scope of the employees assigned tasks, the Supreme Court has held that this includes any act done by an employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damage (Filamer Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer (at p. 645).

In light of the foregoing, We are unable to sustain the trial courts finding that since defendant Li was authorized by the company to use the company car either officially or socially or even bring it home, he can be considered as using the company car in the service of his employer or on the occasion of his functions. Driving the company car was not among his functions as assistant manager; using it for non-official purposes would appear to be a fringe benefit, one of the perks attached to his position. But to impose liability upon the employer under Article 2180 of the Civil Code, earlier quoted, there must be a showing that the damage was caused by their employees in the service of the employer or on the occasion of their functions. There is no evidence that Richard Li was at the time of the accident performing any act in furtherance of the companys business or its interests, or at least for its benefit. The imposition of solidary liability against defendant Alexander Commercial Corporation must therefore fail.[27]

We agree with the respondent court that the relationship in question is not based on the principle of respondeat superior, which holds the master liable for acts of the servant, but that ofpater familias,  in which the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the family in the selection and supervision of his employees. It is up to this point, however, that our agreement with the respondent court ends. Utilizing the bonus pater familias standard expressed in Article 2180 of the Civil Code,[28] we are of the opinion that Lis employer, Alexander Commercial, Inc. is jointly and solidarily liable for the damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals[29] upon which respondent court has placed undue reliance, dealt with the subject of a school and its teachers supervision of students during an extracurricular activity. These cases now fall under the provision on special parental authority found in Art. 218 of the Family Code which generally encompasses all authorized school activities, whether inside or outside school premises.

Second, the employers primary liability under the concept of pater familias embodied by Art. 2180 (in relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showing that he exercised the diligence of a good father of the family in the selection and supervision of its employees. Once evidence is introduced showing that the employer exercised the required amount of care  in selecting its employees, half of the employers burden is overcome. The question of diligent supervision, however, depends on the circumstances of employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the performance of the latters assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in relation to Article 2176 of the Civil Code. The employer is not expected to exercise supervision over either the employees private activities or during the performance of tasks either unsanctioned by the former or unrelated to the employees tasks. The case at bench presents a situation of a different character, involving a practice utilized by large companies with either their employees of managerial rank or their representatives.

It is customary for large companies to provide certain classes of their employees with courtesy vehicles. These company cars are either wholly owned and maintained by the company itself or are subject to various plans through which employees eventually acquire their vehicles after a given period of service, or after paying a token amount. Many companies provide liberal car plans to enable their managerial or other employees of rank to purchase cars, which, given the cost of vehicles these days, they would not otherwise be able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of ownership to the employee; in the second example, the car is really owned and maintained by the employee himself. In furnishing vehicles to such employees, are companies totally absolved of responsibility when an accident involving a company-issued car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests of road worthiness from their agents prior to turning over the car (subject of company maintenance) to their representatives. In other words, like a good father of a family, they entrust the company vehicle only after they are satisfied that the employee to whom the car has been given full use of the said company car for company or private purposes will not be a threat or menace to himself, the company or to others. When a company gives full use and enjoyment of a company car to its employee, it in effect guarantees that it is, like every good father, satisfied that its employee will use the privilege reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-issued car. For large companies other than those cited in the example of the preceding paragraph, the privilege serves important business purposes either related to the image of success an entity intends to present to its clients and to the public in general, or for practical and utilitarian reasons - to enable its managerial and other employees of rank or its sales agents to reach clients conveniently. In most cases, providing a company car serves both purposes. Since important business transactions and decisions may occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a company car therefore principally serves the business and goodwill of a company and only incidentally the private purposes of the individual who actually uses the car, the managerial employee or company sales agent. As such, in providing for a company car for business use and/or for the purpose of furthering the companys image, a company owes a responsibility to the public to see to it that the managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able to use the company issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the trial court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep normal office hours as he was required quite often to perform work outside the office, visiting prospective buyers and contacting and meeting with company clients.[30] These meetings, clearly, were not strictly confined to routine hours because, as a managerial employee tasked with the job of representing his company with its clients, meetings with clients were both social as well as work-related functions. The service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the front of a highly successful entity, increasing the latters goodwill before its clientele. It also facilitated meeting between Li and its clients by providing the former with a convenient mode of travel.

Moreover, Lis claim that he happened to be on the road on the night of the accident because he was coming from a social visit with an officemate in Paraaque was a bare allegation which was never corroborated in the court below. It was obviously self-serving. Assuming he really came from his officemates place, the same could give rise to speculation that he and his officemate had just been from a work-related function, or they were together to discuss sales and other work related strategies.

In fine, Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to whether or not the company took the steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a company car. [31] Not having been able to overcome the burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as to the amount of moral damages. In the case of moral damages, while the said damages are not intended to enrich the plaintiff at the expense of a defendant, the award should nonetheless be commensurate to the suffering inflicted. In the instant case we are of the opinion that the reduction in moral damages from an amount of P 1,000,000.00 to P500,000.00 by the Court of Appeals was not justified considering the nature of the resulting damage and the predictable sequelae of the injury.

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and re-adjusted to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body wouldnormally undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented, are painful.

The foregoing discussion does not even scratch the surface of the nature of the resulting damage because it would be highly speculative to estimate the amount of psychological pain, damage and injury which goes with the sudden severing of a vital portion of the human body. A prosthetic device, however technologically advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.

As the amount of moral damages are subject to this Courts discretion, we are of the opinion that the amount of P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury -. physical and psychological - suffered by Valenzuela as a result of Lis grossly negligent driving of his Mitsubishi Lancer in the early morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the court of Appeals is modified with the effect of REINSTATING the judgment of the Regional Trial Court.

SO ORDERED.

Republic of the PhilippinesSupreme CourtManila

FIRST DIVISION

ORIX METRO LEASING ANDFINANCE CORPORATION(Formerly CONSOLIDATEDORIX LEASING AND FINANCECORPORATION),

G.R. No. 174089

Petitioner,

- versus -

MINORS: DENNIS, MYLENE,MELANIE and MARIKRIS, allsurnamed MANGALINAO yDIZON, MANUEL M. ONG,LORETO LUCILO, SONNYLI, AND ANTONIO DE LOSSANTOS,Respondents.x - - - - - - - - - - - - - - - - - - - - - - - - x

SONNY LI and ANTONIO DELOS SANTOS,Petitioners,

G.R. No. 174266

- versus - Present:

MINORS: DENNIS, MYLENE,MELANIE and MARIKRIS, allsurnamed MANGALINAO yDIZON, LORETO LUCILO,CONSOLIDATED ORIXLEASING AND FINANCECORPORATION andMANUEL M. ONG,Respondents.

CORONA, C.J., Chairperson,LEONARDO-DE CASTRO,PERALTA,⃰

BERSAMIN, andDEL CASTILLO, JJ.Promulgated:January 25, 2012

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

DEL CASTILLO, J.:

The ones at fault are to answer for the effects of vehicular accidents.

A multiple-vehicle collision in North Luzon Expressway (NLEX) resulting in the death of all the

passengers in one vehicle, including the parents and a sibling of the surviving orphaned minor heirs,

compelled the latter to file an action for damages against the registered owners and drivers of the two 10-

wheeler trucks that collided with their parents’ Nissan Pathfinder (Pathfinder).

Assailed in these consolidated Petitions for Review on Certiorari1 filed by Orix Metro Leasing and Finance

Corporation (Orix)2 and by Sonny Li (Sonny) and Antonio delos Santos (Antonio)3 are the October 27, 2005

Decision4 and August 17, 2006 Resolution5 of the Court of Appeals (CA) in CA-G.R. CV No. 70530.

Factual Antecedents

On June 27, 1990, at about 11:15 p.m., three vehicles were traversing the two-lane northbound NLEX

in the vicinity of Barangay Tibag, Pulilan, Bulacan. It was raining that night.

Anacleto Edurese, Jr. (Edurese) was driving a Pathfinder with plate number BBG-334. His Isabela-bound

passengers were the owners of said vehicle, spouses Roberto and Josephine Mangalinao (Mangalinao

spouses), their daughter Marriane, housemaid Rufina Andres and helper Armando Jebueza (Jebueza). Before

them on the outer lane was a Pampanga-bound Fuso 10-wheeler truck (Fuso), with plate number PAE-160,

driven by Loreto Lucilo (Loreto), who was with truck helper Charlie Palomar (Charlie). The Fuso was then

already moving in an erratic and swerving motion.6 Following behind the Pathfinder was another 10-wheeler

truck, an Isuzu Cargo (Isuzu) with plate number PNS-768 driven by Antonio, who was then with helper

Rodolfo Navia (Rodolfo).

Just when the Pathfinder was already cruising along the NLEX’s fast lane and about to overtake the

Fuso, the latter suddenly swerved to the left and cut into the Pathfinder’s lane thereby blocking its way. As a

result, the Pathfinder hit the Fuso’s left door and left body.7 The impact caused both vehicles to stop in the

middle of the expressway. Almost instantly, the inevitable pileup happened. Although Antonio stepped on the

brakes,8 the Isuzu’s front crashed9 into the rear of the Pathfinder leaving it a total wreck.10 Soon after, the

Philippine National Construction Corporation (PNCC) patrol arrived at the scene of the accident and informed

the Pulilan police about the vehicular mishap. Police Investigator SPO2 Emmanuel Banag responded at about

2:15-2:30 a.m. of June 28, 1990 and investigated the incident as gathered from the information and

sketch11 provided by the PNCC patrol as well as from the statements12 provided by the truck helpers Charlie

and Rodolfo.

In the meantime, the Mangalinao spouses, the driver Edurese, and the helper Jebueza were declared

dead on the spot while 6-month old Marriane and the housemaid were declared dead on arrival at a nearby

hospital.13 The occupants of the trucks escaped serious injuries and death.

As their letters14 to the registered owners of the trucks demanding compensation for the accident

were ignored, the minor children of the Mangalinao spouses, Dennis, Mylene, Melanie and Marikris, through

their legal guardian,15 consequently filed on January 16, 1991 a Complaint16 for damages based on quasi-

delict, before the Regional Trial Court (RTC) of Makati which was docketed as Civil Case No. 91-123.17 They

impleaded the drivers Loreto and Antonio, as well as the registered owners of the Fuso and the Isuzu trucks,

namely Orix and Sonny,18 respectively. The children imputed recklessness, negligence, and imprudence on the

truck drivers for the deaths of their sister and parents; while they hold Sonny and Orix equally liable for

failing to exercise the diligence of a good father of a family in the selection and supervision of their respective

drivers. The children demanded payment of more thanP10.5 million representing damages and attorney’s

fees.

Orix in its Motion to Dismiss19 interposed that it is not the actual owner of the Fuso truck. As the trial

court denied the motion,20 it then filed its Answer with Compulsory Counterclaim and Cross-claim.21 Orix

reiterated that the children had no cause of action against it because on September 9, 1983, it already sold the

Fuso truck to MMO Trucking owned by Manuel Ong (Manuel).22 The latter being the alleged owner at the time

of the collision, Orix filed a Third Party Complaint23 against Manuel, a.k.a. Manuel Tan.

In their Answer with Compulsory Counterclaim and Cross-Claim,24 Sonny and Antonio attributed

fault for the accident solely on Loreto’s reckless driving of his truck which suddenly stopped and slid across

the highway. They claimed that Sonny had exercised the expected diligence required of an employer; that

Antonio had been all along driving with care; and, that with the abrupt and unexpected collision of the

vehicles before him and their precarious proximity, he had no way of preventing his truck from hitting the

Pathfinder.

For failing to file any responsive pleading, both Manuel and Loreto were declared in default.25

Ruling of the Regional Trial Court

After trial, the court a quo  issued a Decision26 on February 9, 2001 finding Sonny, Antonio, Loreto

and Orix liable for damages. It likewise ruled in favor of Orix anent its third party complaint, the latter having

sufficiently proven that Manuel of MMO Trucking is the real owner of the Fuso.

The dispositive portion of the RTC Decision states:

Wherefore, premises considered, judgment is hereby rendered in favor of plaintiffs and against the defendants, ordering the latter to pay plaintiffs, jointly and severally, the following:

1. P3,077,000.00 as actual damages;2. P2,000,000.00 as moral damages;3. P1,000,000.00 as exemplary damages; and

4. P400,000.00 as and for reasonable attorney’s fees5. legal interest at six percent (6%) per annum on the above-stated amounts from the filing of

the complaint on January 16, 1991 until fully paid; and6. costs of suit and expenses of litigation.

Third party defendant Manuel M. Ong is ordered to indemnify third party plaintiff [Orix] for the amounts adjudged against the latter in this case.

SO ORDERED. 27

Ratiocinating its finding of recklessness on both truck drivers, the RTC said:

The evidence leaves no doubt that both truck drivers were at fault and should be held liable. Lucilo, who was driving the Fuso truck, was reckless when he caused the swerving of his vehicle directly on the lane of the Pathfinder to his left. The Pathfinder had no way to avoid a collision because it was about to pass the truck when suddenly blocked. On the other hand, the Isuzu truck was practically tailgating the Pathfinder on the dark slippery highway such that when the Pathfinder collided with the Fuso truck, it became inevitable for the Isuzu truck to crash into the Pathfinder. So, de los Santos, the driver of the Isuzu truck was likewise reckless.28

In an attempt to exonerate itself, Orix appealed to the CA29 followed by Sonny and Antonio.30 All of

them challenged the factual findings and conclusions of the court a quo with regard to their respective

liabilities, each pinpointing to the negligence of the other and vice versa. All of them likewise assailed the

amounts the RTC awarded to the minors for lack of basis.

Ruling of the Court of Appeals

On October 27, 2005, the CA rendered its Decision31 affirming the factual findings of the trial court of

reckless driving. It said:

It may be true that it was the Nissan Pathfinder which first hit and bumped and eventually crashed into the Fuso truck. However, this would not have happened if the truck did not swerve into the lane of the Nissan Pathfinder. As afore-mentioned [sic], the latter had no way then to avoid a collision because it was about to overtake the former.

As a motorist, Lucilo [Loreto] should have operated his truck with reasonable caution considering the width, traffic, grades, crossing, curvatures, visibility and other conditions of the highway and the conditions of the atmosphere and weather. He should have carefully and cautiously driven his vehicle so as not to have endangered the property or the safety or rights of other persons. By failing to drive with reasonable caution, Lucilo is, hence, liable for the resultant vehicle collision.

Neither do [we] find credence in delos Santos’ claim that he is without liability for the vehicular collision. We cannot overemphasize the primacy in probative value of physical evidence, that mute but eloquent manifestation of the truth. An examination of the destroyed front part of the Isuzu truck, as shown by photographic evidence, clearly indicates strong bumping of the rear of the Pathfinder. The photographs belie delos Santos’ claim that he was driving at a safe speed and even slowed down when he noticed the [erratic] traveling of the Fuso truck. In fact, by his own admission, it was a matter of seconds before his Isuzu truck hit the Nissan Pathfinder - a clear indication that he did not actually [slow] down considering the weather and road condition at that time. Had he been actually prudent in driving, the impact on the Nissan Pathfinder would not have been that great or he might have even taken evasive action to avoid hitting it. Sadly, that was not the case as shown by the evidence on record.32

The CA also ruled that Orix, as the registered owner of the Fuso, is considered in the eyes of the law

and of third persons responsible for the deaths of the passengers of the Pathfinder, regardless of the lack of

an employer-employee relationship between it and the driver Loreto.

The CA modified the award of damages as follows:

1. P150,000.00 as indemnity for the death of Spouses Roberto and Josephine Mangalinao and their daughter Marianne Mangalinao;

2. P2,000,000.00 for loss of earning capacity;3. P64,200.00 for funeral expenses;4. P1,000,000.00 as moral damages;5. P1,000,000.00 as exemplary damages;6. P400,000.00 as attorney’s fees.

If the amounts adjudged remain unpaid upon the finality of this decision, the interest rate shall be twelve percent (12%) per annum computed from the time the judgment bec[a]me final and executory until fully satisfied.

The six percent (6%) interest per annum from the filing of the complaint indicated in the assailed decision is DELETED.

SO ORDERED.33

Orix and Sonny joined by Antonio, filed their separate Motions for Reconsideration34 but same were denied in

a Resolution35 dated August 17, 2006.

Hence, these consolidated petitions.

Petitioners’ Respective Arguments

Orix’s contentions in its petition may be summarized as follows:

1. It is not the owner and operator of the Fuso at the time of the collision and should not be held

responsible for compensating the minor children of the Mangalinaos;

2. The Fuso’s swerving towards the inner lane where the Pathfinder is cruising is attributable not to the

alleged negligence of Loreto but to adverse driving conditions, i.e., the stormy weather and slippery

road;

3. The CA has no reliable evidentiary basis for computing loss of earning capacity as the Balance Sheet

and Income Statement of Roberto Mangalinao, as certified by accountant Wilfredo de Jesus for the

year 1989, is hearsay evidence; and

4. The award of attorney’s fees sustained by the CA is not justified and is exorbitant.

On the other hand, Sonny and Antonio argue in their petition that:

1. the CA erred in affirming the trial court’s erroneous finding that the Isuzu was tailgating, which is

contradicted by the material evidence on record;

2. the proximate cause of the death of the victims is Loreto’s gross negligence. Antonio should have

been accorded the benefit of the ‘emergency rule’ wherein he was immediately confronted with a

sudden danger and had no time to think of how to avoid it;

3. the CA should not have awarded damages and attorney’s fees because of the total absence of

evidence to substantiate them.

In short, petitioners want us to review the finding of negligence by the CA of both truck drivers, the

solidary liability of Orix as the registered owner of the Fuso, and the propriety of the damages the CA

awarded in favor of the Mangalinao children.

Our Ruling

The finding of negligence of petitioners as found by the lower courts is binding

Negligence and proximate cause are factual issues.36 Settled is the rule that this Court is not a trier of facts,

and the concurrence of the findings of fact of the courts below are conclusive. “A petition for review

on certiorari under Rule 45 of the Rules of Court should include only questions of law - questions of fact are

not reviewable”37 save for several exceptions,38 two of which petitioners invoke, i.e., that ‘the finding is

grounded on speculations, surmises, and conjectures,’ and that ‘the judgment is based on a misapprehension

of facts.’

There is no compelling reason to disturb the lower courts’ factual conclusions.

With regard to the Fuso, we note the statement given by the helper Charlie before the Pulilan police

immediately after the incident:

T: Pakisalaysay mo nga ang mga pangyayari?

S: Nuon nga pong oras at petsang nabanggit habang ako ay sakay ng isang truck patungo Pampanga at sa lugar ng pinangyarihan ay namireno ang aking driver dahil sa madulas at nagawi kami sa gawing kaliwa (inner lane) na isang mabilis na pajero (Nissan 4x4) ang bumangga sa gawing unahan hanggang sa tagiliran gawing kaliwa, na ang nasabing pajero ay papalusot (overtake) na pagkatapos nuon ay may isa (1) pang truck na bumangga sa hulihan.39

Based on the helper’s statement, the Fuso had lost control, skidded to the left and blocked the way of the

Pathfinder, which was about to overtake. The Pathfinder had absolutely no chance to avoid the truck. Instead

of slowing down and moving towards the shoulder in the highway if it really needed to stop, it was very

negligent of Loreto to abruptly hit the brake in a major highway wherein vehicles are highly likely to be at his

rear. He opened himself up to a major danger and naturally, a collision was imminent.

On the other hand, the parties for the Isuzu contend that the CA erred in ruling that the truck was moving at a

fast speed and was tailgating. They assert that they be absolved because the fault lay entirely on the Fuso,

which had been zigzagging along the highway. They aver that when the Fuso and the Pathfinder collided in

the middle of the highway with the Fuso blocking both lanes of the northbound stretch, there was no room

left for driver Antonio to maneuver to avoid them, and that the Pathfinder was hit as a natural consequence.

The Isuzu’s driver, Antonio, claims that he and the two vehicles before him were travelling at the right lane of

the highway, and on his part, he was travelling at a speed of 50-60 kph and that he was three cars away from

the Pathfinder. When the Pathfinder hit the left side of the Fuso, he stepped on the brake but still struck the

Pathfinder.40 He further narrated:

CROSS-EXAMINATION BY ATTY. DOMINGO:

Q And what was this if you noticed anything before the incident happened?

A The Fu[s]o Cargo Truck was swerving from left to right, Sir.

Q How long before this collision did you notice this kind of travelling on the part of the Fu[s]o Cargo Truck?

A About 15 to 20 minutes, Sir.

Q When you noticed this, what if anything, did you do?

A I slow[ed] down, Sir.

Q When you said you slow[ed] down, at what speed do you mean you were travelling?

A More or less 50 kph., Sir.

Q So prior to that, you were travelling faster than 50 to 60 kph. Is that correct?

A Yes, Sir.

Q And [in spite] of that, you testified that you hit the Nissan Pathfinder after it hit the Fu[s]o Cargo Truck?

A Despite the fact that it slow[ed] down, I also hit the Nissan Pathfinder when I skidded because of the slippery condition of the road at that time.

Q And it was precisely this slippery condition of the road that you are talking about that caused you to hit the Nissan Pathfinder?

A Yes, Sir.41

x x x x

Q I will just go back to the incident on the collision. At what particular point in the vehicle you were driving hit the Nissan Pathfinder? At what portion of the Nissan Pathfinder was it hit by the vehicle that you were driving?

A At the rear portion of the Nissan Pathfinder, Sir.

Q What portion, the right o[r] the left portion of the rear?

A I hit the right side of the rear portion of the Nissan Pathfinder, Sir.

Q And what happened to the Nissan Pathfinder after you hit it on the right rear portion?

A The back portion of the Nissan Pathfinder was damaged, Sir.

Q And what was the extent of the [damage] on the back portion?

A The rear portion was extensively damaged, Sir.

Q After you hit the rear portion of the Nissan Pathfinder, did your vehicle hit any other portion of that Nissan Pathfinder?

A None, Sir.

Q After you hit the Nissan Pathfinder at the rear, in what manner did it move, if it moved?

A After I hit the rear portion of the Nissan Pathfinder, it did not move anymore, but I also hit the right side of the Fu[s]o Cargo Truck, Sir.

COURT:

For a while, what part of the Fu[s]o Cargo Truck did you hit?

WITNESS:

A I hit the sidings of the Fu[s]o Cargo Truck, Your Honor.42

x x x x

CROSS-EXAMINATION BY ATTY. GUERRERO:

Q When the Pathfinder hit the Fu[s]o Truck, were you still behind the Pathfinder?

A Yes, Sir.

Q [Were you] still in the same lane that you were travelling 30 minutes before the impact?

A Yes, Sir.

Q You did not move from your lane [in spite] of the collision between the Pathfinder and the Fu[s]o Truck?

A No, Sir. I did not move. I stayed on my lane.43

x x x x

REDIRECT EXAMINATION BY ATTY. NATIVIDAD:

Q You stated a while ago, during the cross-examination by counsel that the moment you saw the Nissan Pathfinder [smash] against the side of the Fu[s]o, you did not move your Truck anymore. Why did you not swerve to the left or to the right?

A Because there was an [oncoming] bus signalling [sic] to me, Sir.

Q How about to the right, why did you not abruptly maneuver your truck to the right to avoid hitting the Nissan Pathfinder?

A I cannot move my truck to the right side because my truck will not pass thorugh [sic] the lane because it is very narrow and if I will do that, I might fall on the other side of the highway where houses were standing.

Q You said that you were unable to pass through the right side of the road. Why [were you] not able to pass [through] to the right side[?] You said it was too narrow. Why is it too narrow?

A Because the Fu[s]o Truck cut across the highway and my truck cannot pass through that space. It is only in the fast lane where I can pass through, Sir.

Q All the while this bumping or the impact between the Nissan Pathfinder and the Fu[s]o Truck and your bumping against the Nissan Pathfinder happened in a few seconds only. Is that correct?

A Yes, Sir.44

The exact positions of the vehicles upon a perusal of the sketch45 (drawn only after the Fuso was

moved to the shoulder to decongest traffic) would show that both the Pathfinder and the Isuzu rested on the

highway diagonally. The left part of the former occupied the right portion of the inner lane while the rest of

its body was already on the outer lane, indicating that it was about to change lane,  i.e., to the inner lane to

overtake. Meanwhile, the point of collision between the Pathfinder and the Isuzu occurred on the right

portion of the outer lane, with the Isuzu’s front part ramming the Pathfinder’s rear, while the rest of the 10-

wheeler’s body lay on the shoulder of the road.

We are not convinced that the Isuzu is without fault. As correctly found by the CA, the smashed front of the

Isuzu strongly indicates the strong impact of the ramming of the rear of the Pathfinder that pinned its

passengers. Furthermore, Antonio admitted that despite stepping on the brakes, the Isuzu still suddenly

smashed into the rear of the Pathfinder causing extensive damage to it, as well as hitting the right side of the

Fuso. These militate against Antonio’s claim that he was driving at a safe speed, that he had slowed down, and

that he was three cars away. Clearly, the Isuzu was not within the safe stopping distance to avoid the

Pathfinder in case of emergency. Thus, the ‘Emergency Rule’ invoked by petitioners will not apply. Such

principle states:

[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.46

Considering the wet and slippery condition of the road that night, Antonio should have been prudent

to reduce his speed and increase his distance from the Pathfinder. Had he done so, it would be improbable for

him to have hit the vehicle in front of him or if he really could not avoid hitting it, prevent such extensive

wreck to the vehicle in front. With the glaring evidence, he obviously failed to exercise proper care in his

driving.

Orix as the operator on record of the

Fuso truck is liable to the heirs of the victims of the mishap

Orix cannot point fingers at the alleged real owner to exculpate itself from vicarious liability under

Article 218047 of the Civil Code. Regardless of whoever Orix claims to be the actual owner of the Fuso by

reason of a contract of sale, it is nevertheless primarily liable for the damages or injury the truck registered

under it have caused. It has already been explained:

Were a registered owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to

escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially for the damage or injury done. A victim of recklessness on the public highways is usually without means to discover or identify the person actually causing the injury or damage. He has no means other than by a recourse to the registration in the Motor Vehicles Office to determine who is the owner. The protection that the law aims to extend to him would become illusory were the registered owner given the opportunity to escape liability by disproving his ownership. x x x48

Besides, the registered owners have a right to be indemnified by the real or actual owner of the amount that

they may be required to pay as damage for the injury caused to the plaintiff,49which Orix rightfully

acknowledged by filing a third-party complaint against the owner of the Fuso, Manuel.

The heirs deserve to receive the damages awarded by the CA, with modifications as to their amounts

With regard to actual damages, one is entitled to an adequate compensation only for such pecuniary loss

suffered by him as he has duly proved.50 Anent the funeral and burial expenses, the receipts issued by San

Roque Funeral Homes51 in the amount of P57,000.00 and by St. Peter Memorial Homes52 in the amount

of P50,000.00, as supported by the testimonies of the witnesses who secured these documents, prove

payment by the respondent heirs of the funeral costs not only of their deceased relatives but of the latter’s

helpers as well, and thus we find it proper to award the total amount of P107,000.00.

In addition to P150,000.00 indemnity for the death of the spouses Mangalinao and their daughter

Marianne as a result of quasi-delict, actual damages shall likewise include the loss of the earning capacity of

the deceased.53 In this case, the CA awarded P2,000,000.00, which it found reasonable after considering the

income statement of Roberto Mangalinao as of the year 1989.54 Petitioners challenge this for lack of basis,

arguing that the CA failed to consider the formula provided by this Court,55 and that the income statement

was not even testified to by the accountant who prepared such document.

In its Decision, the CA, while recognizing that there is a formula provided for computing the loss of

the earning capacity of the victims, itself acknowledged that such formula cannot be used to arrive at the net

earning capacity using the 1989 income statement alone, more so when such was not authenticated by the

proper party. If the net income stated therein was used in the formula, the CA would have awarded the

Mangalinao heirs more than P18,000,000.00. It did not, however, use the income statement as its sole gauge.

While the net income had not been sufficiently established, the Court recognizes the fact that the

Mangalinao heirs had suffered loss deserving of compensation. What the CA awarded is in actuality a form of

temperate damages. Such form of damages under Article 222456 of the Civil Code is given in the absence of

competent proof on the actual damages suffered.57 “In the past, we awarded temperate damages in lieu of

actual damages for loss of earning capacity where earning capacity is plainly established but no evidence was

presented to support the allegation of the injured party’s actual income.”58 In this case, Roberto Mangalinao,

the breadwinner of the family, was a businessman engaged in buying and selling palay and agricultural

supplies that required high capital in its operations and was only 37 at the time of his death. Moreover, the

Pathfinder which the Mangalinaos own, became a total wreck. Under the circumstances, we find the award

of P500,000.00 as temperate damages as reasonable.59

Moral damages,60 it must be stressed, are not intended to enrich plaintiff at the expense of the

defendant. They are awarded to enable the injured party to obtain means, diversions, or amusements that

will serve to alleviate the moral suffering he/she had undergone due to the other party’s culpable action and

must, perforce, be proportional to the suffering inflicted.61 While the children did not testify before the court,

undoubtedly, they suffered the pain and ordeal of losing both their parents and sibling and hence, the award

of moral damages is justified. However, the amount must be reduced to P500,000.00.62

“In quasi-delicts, exemplary damages may be granted if the defendant acted with gross

negligence.”63 It is given by way of example or correction for the public good.64 Before the court may consider

such award, the plaintiff must show his entitlement first to moral, temperate, or compensatory

damages,65 which the respondents have. In the case at bench, the reckless driving of the two trucks involved

caused the death of the victims. However, we shall reduce the amount of exemplary damages

to P200,000.00.66

Lastly, because exemplary damages are awarded and that we find it equitable that expenses of

litigation should be recovered,67 we find it sufficient and reasonable enough to grant attorney’s fees

of P50,000.00.68

Parenthetically, the Manifestation and Motion with notice of change of address by counsel for

respondents; and the transmittal of CA’s rollo consisting of 256 pages with two attached Supreme Court

petitions, one folder of original records and one folder of transcript of stenographic notes, by the Judicial

Records Division, CA, are noted.

WHEREFORE, the instant petitions are PARTIALLY GRANTED. The Decision of the Court of Appeals

in CA-G.R. CV No. 70530 is AFFIRMED with MODIFICATIONS. The award of actual damages is

hereby INCREASED to P107,000.00. The award of moral damages is REDUCED to P500,000.00, the award of

temperate damages for loss of earning capacity is likewise REDUCED to P500,000.00, and the award of

exemplary damages and of attorney’s fees are REDUCED to P200,000.00 andP50,000.00, respectively. All

other awards of the Court of Appeals are AFFIRMED.

SO ORDERED.

PRESCRIPTION

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-19331             April 30, 1965

VICTORIA G. CAPUNO and JOSEPHINE G. CAPUNO, plaintiffs-appellants, vs.PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES and JON ELORDI, defendants-appellees.

Federico Andres for plaintiffs-appellants.Vicente J. Francisco for defendants-appellees.

MAKALINTAL, J.:

This appeal (in forma pauperis), certified here by the Court of Appeals, is from the order of the Court of First Instance of Tarlac dismissing appellant's complaint in Civil Case No. 3315 for recovery of damages for the death of Cipriano Capuno.

The case arose from a vehicular collision which occurred on January 3, 1953 in Apalit, Pampanga. Involved were a Pepsi-Cola delivery truck driven by Jon Elordi and a private car driven by Capuno. The collision proved fatal to the latter as well as to his passengers, the spouses Florencio Buan and Rizalina Paras.

On January 5, 1953 Elordi was charged with triple homicide through reckless imprudence in the Court of First Instance of Pampanga (criminal case No. 1591). The information was subsequently amended to include claims for damages by the heirs of the three victims.

It is urged for the applicant that no opposition has been registered against his petition on the issues above-discussed. Absence of opposition, however, does not preclude the scanning of the whole record by the appellate court, with a view to preventing the conferment of citizenship to persons not fully qualified therefor (Lee Ng Len vs. Republic, G.R. No. L-20151, March 31, 1965). The applicant's complaint of unfairness could have some weight if the objections on appeal had been on points not previously passed upon. But the deficiencies here in question are not new but well-known, having been ruled upon repeatedly by this Court, and we see no excuse for failing to take them into account.1äwphï1.ñët

On October 1, 1953, while the criminal case was pending, the Intestate Estate of the Buan spouses and their heirs filed a civil action, also for damages, in the Court of First Instance of Tarlac against the Pepsi-Cola Bottling Company of the Philippines and Jon Elordi (civil case No. 838). Included in the complaint was a claim for indemnity in the sum of P2,623.00 allegedly paid by the Estate to the heirs of Capuno under the Workmen's Compensation Act.

In the criminal case both the heirs of Capuno and the Estate of Buan — the former being appellants herein — were represented by their respective counsel as private prosecutors: Attorney Ricardo Y. Navarro and Attorneys Jose W. Diokno and Augusto M. Ilagan. In view of the filing of the civil action the accused Jon Elordi moved to strike out the appearances of these private prosecutors in the criminal case. Grounds for the motion were (1) that as the Capuno heirs were concerned, they no longer had any interest to protect in the criminal case since they had already claimed and received compensation for the death of their decedent; and (2) that on the part of the Estate of Buan its right to intervene in said case had been abated by the civil action.

The appearance and intervention of Attorneys Diokno and Ilagan was disallowed by the Court in an order dated September 23, 1953, and that of Attorney Navarro was disallowed in an amending order dated October 23, 1954. No appeal was taken from either of the two orders.

On June 11, 1958 the parties in Civil Case No. 838 entered into a "Compromise and Settlement." For P290,000.00 the Buan Estate gave up its claims for damages, including the claim for reimbursement of the sum of P2,623.00 previously paid to the heirs of Capuno "under the Workmen's Compensation Act." The Court approved the compromise and accordingly dismissed the case on the following June 17.

At that time the criminal case was still pending; judgment was rendered only on April 15, 1959, wherein the accused Elordi was acquitted of the charges against him. Prior thereto, or on September 26, 1958, however, herein appellants commenced a civil action for damages against the Pepsi-Cola Bottling Company of the Philippines and Jon Elordi. This is the action which, upon appellees' motion, was dismissed by the Court a quo in its order of February 29, 1960, from which order the present appeal has been taken.

The grounds upon which appellees based their motion for dismissal and which the Court found to be "well taken" were; (1) that the action had already prescribed; and (2) that appellees had been released from appellants' claim for damages by virtue of the payment to the latter of the sum of P2,623.00 by the Buan Estate under the Workmen's Compensation Act, which sum, in turn, was sought to be recovered by the said Estate from appellees in Civil Case No. 838 but finally settled by them in their compromise.

The ruling of the court below on both points is now assailed by appellants as erroneous. In our opinion the question of prescription is decisive. There can be no doubt that the present action is one for recovery of damages based on a quasi-delict, which action must be instituted within four (4) years (Article 1146, Civil Code). Appellants originally sought to enforce their claim ex-delicto, that is, under the provisions of the Penal Code, when they intervened in the criminal case against Jon Elordi. The information therein, it may be recalled, was amended precisely to include an allegation concerning damages suffered by the heirs of the victims of the accident for which Elordi was being prosecuted. But appellants' intervention was subsequently disallowed and they did not appeal from the Court's order to the effect. And when they commenced the civil action on September 26, 1958 the criminal case was still pending, showing that appellants then chose to pursue the remedy afforded by the Civil Code, for otherwise that action would have been premature and in any event would have been concluded by the subsequent judgment of acquittal in the criminal case.

In filing the civil action as they did appellants correctly considered it as entirely independent of the criminal action, pursuant to Articles 31 and 33 of the Civil Code, which read:

ART. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

The term "physical injuries" in Article 33 includes bodily injuries causing death (Dyogi v. Yatco, G.R. No. L-9623, Jan. 22, 1957, 22 L.J. 175). In other words, the civil action for damages could have been commenced by appellants immediately upon the death of their decedent, Cipriano Capuno, on January 3, 1953 or thereabouts, and the same would not have been stayed by the filing of the criminal action for homicide through reckless imprudence. But the complaint here was filed only on September 26, 1958, or after the lapse of more than five years.

In the case of Diocosa Paulan, et al. vs. Zacarias Sarabia, et al., G.R. No. L-10542, promulgated July 31, 1958, this Court held that an action based on a quasi-delict is governed by Article 1150 of the Civil Code as to the question of when the prescriptive period of four years shall begin to run, that is, "from the day (the action) may be brought," which means from the day the quasi-delict occurred or was committed.

The foregoing considerations dispose of appellants' contention that the four-year period of prescription in this case was interrupted by the filing of the criminal action against Jon Elordi inasmuch as they had neither waived the civil action nor reserved the right to institute it separately. Such reservation was not then necessary; without having made it they could file — as in fact they did — a separate civil action even during the pendency of the criminal case (Pacheco v. Tumangday, L-14500, May 25, 1960; Azucena v. Potenciano, L-14028, June 30, 1962); and consequently, as held in Paulan v. Sarabia, supra, "the institution of a criminal action cannot have the effect of interrupting the institution of a civil action based on a quasi-delict."

As to whether or not Rule 111, Section 2, of the Revised Rules of Court which requires the reservation of the right to institute a separate and independent civil action in the cases provided for in Articles 31, 32, 33, 34, and 2177 of the Civil Code affects the question of prescription, we do not now decide. The said rule does not apply in the present case.

Having found the action of appellants barred by the statute of limitations, we do not consider it necessary to pass upon the other issues raised in their brief.

The order appealed from is affirmed, without costs.

INCOMPLETE/PARTIAL DEFENSE

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. L-55347 October 4, 1985

PHILIPPINE NATIONAL RAILWAYS, petitioner, vs.THE HONORABLE COURT OF APPEALS and ROSARIO TUPANG, respondents.

Arturo Samaniego for private respondent.

 

ESCOLIN, J.:

Invoking the principle of state immunity from suit, the Philippine National Railways, PNR for short, instituted this petition for review on certiorari to set aside the decision of the respondent Appellate Court which held petitioner PNR liable for damages for the death of Winifredo Tupang, a paying passenger who fell off a train operated by the petitioner.

The pertinent facts are summarized by the respondent court as follows:

The facts show that on September 10, 1972, at about 9:00 o'clock in the evening, Winifredo Tupang, husband of plaintiff Rosario Tupang, boarded 'Train No. 516 of appellant at

Libmanan, Camarines Sur, as a paying passenger bound for Manila. Due to some mechanical defect, the train stopped at Sipocot, Camarines Sur, for repairs, taking some two hours before the train could resume its trip to Manila. Unfortunately, upon passing Iyam Bridge at Lucena, Quezon, Winifredo Tupang fell off the train resulting in his death.The train did not stop despite the alarm raised by the other passengers that somebody fell from the train. Instead, the train conductor Perfecto Abrazado, called the station agent at Candelaria, Quezon, and requested for verification of the information. Police authorities of Lucena City were dispatched to the Iyam Bridge where they found the lifeless body of Winifredo Tupang.

As shown by the autopsy report, Winifredo Tupang died of cardio-respiratory failure due to massive cerebral hemorrhage due to traumatic injury [Exhibits B and C, Folder of Exhibits],Tupang was later buried in the public cemetery of Lucena City by the local police authorities. [Rollo, pp. 91-92]

Upon complaint filed by the deceased's widow, Rosario Tupang, the then Court of First Instance of Rizal, after trial, held the petitioner PNR liable for damages for breach of contract of carriage and ordered "to pay the plaintiff the sum of P12,000,00 for the death of Winifredo Tupang, plus P20,000.00 for loss of his earning capacity and the further sum of P10,000.00 as moral damages, and P2,000.00 as attorney's fees, and costs. 1

On appeal, the Appellate Court sustained the holding of the trial court that the PNR did not exercise the utmost diligence required by law of a common carrier. It further increased the amount adjudicated by the trial court by ordering PNR to pay the plaintiff an additional sum of P5,000.00 as exemplary damages.

Moving for reconsideration of the above decision, the PNR raised for the first time, as a defense, the doctrine of state immunity from suit. It alleged that it is a mere agency of the Philippine government without distinct or separate personality of its own, and that its funds are governmental in character and, therefore, not subject to garnishment or execution. The motion was denied; the respondent court ruled that the ground advanced could not be raised for the first time on appeal.

Hence, this petition for review.

The petition is devoid of merit. The PNR was created under Rep. Act 4156, as amended. Section 4 of the said Act provides:

The Philippine national Railways shall have the following powers:

a. To do all such other things and to transact all such business directly or indirectly necessary, incidental or conducive to the attainment of the purpose of the corporation; and

b. Generally, to exercise all powers of a corporation under the Corporation Law.

Under the foregoing section, the PNR has all the powers, the characteristics and attributes of a corporation under the Corporation Law. There can be no question then that the PNR may sue and be sued and may be subjected to court processes just like any other corporation. 2

The petitioner's contention that the funds of the PNR are not subject to garnishment or execution hardly raises a question of first impression. In Philippine National Railways v. Union de Maquinistas, et al., 3 then Justice Fernando, later Chief Justice, said. "The main issue posed in this certiorari proceeding, whether or not the funds of the Philippine National Railways, could be garnished or levied upon on execution was resolved in two recent decisions, the Philippine National Bank v. Court of Industrial Relations [81 SCRA 314] and Philippine National Bank v. Hon. Judge Pabalan [83 SCRA 595]. This Court in both cases answered the question in the affirmative. There was no legal bar to garnishment or execution. The argument based on non-

suability of a state allegedly because the funds are governmental in character was unavailing.So it must be again."

In support of the above conclusion, Justice Fernando cited the Court's holding in Philippine National Bank v. Court of Industrial Relations, to wit: "The premise that the funds could be spoken of as public in character may be accepted in the sense that the People's Homesite and Housing Corporation was a government-owned entity. It does not follow though that they were exempt from garnishment. National Shipyard and Steel Corporation v. Court of Industrial Relations is squarely in point. As was explicitly stated in the opinion of then Justice, later Chief Justice, Concepcion: "The allegation to the effect that the funds of the NASSCO are public funds of the government, and that, as such, the same may not be garnished, attached or levied upon, is untenable for, as a government- owned and controlled corporation, the NASSCO has a personality of its own, distinct and separate from that of the Government. It has-pursuant to Section 2 of Executive Order No. 356, dated October 23, 1950 * * *, pursuant to which the NASSCO has been established- 'all the powers of a corporation under the Corporation Law * * *. 4

As far back as 1941, this Court in the case of Manila Hotel Employees Association v. Manila Hotel Co., 5 laid down the rule that "when the government enters into commercial business, it abandons its sovereign capacity and is to be treated like any other corporation. [Bank of the U.S. v. Planters' Bank, 9 Waitch 904, 6 L. ed. 244]. By engaging in a particular business through the instrumentality of a corporation the government divests itself pro hac vice of its sovereign character, so as to render the corporation subject to the rules of law governing private corporations. 6 Of Similar import is the pronouncement in Prisco v. CIR,' that "when the government engages in business, it abdicates part of its sovereign prerogatives and descends to the level of a citizen, ... . " In fine, the petitioner PNR cannot legally set up the doctrine of non-suability as a bar to the plaintiff's suit for damages.

The appellate court found, the petitioner does not deny, that the train boarded by the deceased Winifredo Tupang was so over-crowded that he and many other passengers had no choice but to sit on the open platforms between the coaches of the train. It is likewise undisputed that the train did not even slow down when it approached the Iyam Bridge which was under repair at the time, Neither did the train stop, despite the alarm raised by other passengers that a person had fallen off the train at lyam Bridge. 7

The petitioner has the obligation to transport its passengers to their destinations and to observe extraordinary diligence in doing so. Death or any injury suffered by any of its passengers gives rise to the presumption that it was negligent in the performance of its obligation under the contract of carriage. Thus, as correctly ruled by the respondent court, the petitioner failed to overthrow such presumption of negligence with clear and convincing evidence.

But while petitioner failed to exercise extraordinary diligence as required by law, 8 it appears that the deceased was chargeable with contributory negligence. Since he opted to sit on the open platform between the coaches of the train, he should have held tightly and tenaciously on the upright metal bar found at the side of said platform to avoid falling off from the speeding train. Such contributory negligence, while not exempting the PNR from liability, nevertheless justified the deletion of the amount adjudicated as moral damages. By the same token, the award of exemplary damages must be set aside. Exemplary damages may be allowed only in cases where the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. 9 There being no evidence of fraud, malice or bad faith on the part of petitioner, the grant of exemplary damages should be discarded.

WHEREFORE, the decision of the respondent appellate court is hereby modified by eliminating therefrom the amounts of P10,000.00 and P5,000.00 adjudicated as moral and exemplary damages, respectively. No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 1719            January 23, 1907

M. H., RAKES, plaintiff-appellee, vs.THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A. D. Gibbs for appellant. F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of the defendant, was at work transporting iron rails from a barge in the harbor to the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The defendant has proved that there were two immediately following one another, upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from slipping off. According to the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at about the knee.

This first point for the plaintiff to establish was that the accident happened through the negligence of the defendant. The detailed description by the defendant's witnesses of the construction and quality of the track proves that if was up to the general stranded of tramways of that character, the foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks were the ties to which the tracks were fastened. After the road reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by timbers extending from one side to the other. The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no side pieces or guards on the car; that where no ends of the rails of the track met each other and also where the stringers joined, there were no fish plates. the defendant has not effectually overcome the plaintiff's proof that the joints between the rails were immediately above the joints between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the company attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying from one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman of the plaintiff swears that the day before the accident he called the attention of McKenna, the foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not proven that the company inspected the track after the typhoon or had any proper system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as the depression in it became visible. It is upon the failure of the defendant to repair the weakened track, after notice of its condition, that the judge below based his judgment.

This case presents many important matters for our decision, and first among them is the standard of duty which we shall establish in our jurisprudence on the part of employees toward employees.

The lack or the harshness of legal rules on this subject has led many countries to enact designed to put these relations on a fair basis in the form of compensation or liability laws or the institution of insurance. In the absence of special legislation we find no difficulty in so applying the general principles of our law as to work out a just result.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would constitute a grave crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of regulations, shall cause an injury which, had malice intervened, would have constituted a crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants and representatives is declared to be civil and subsidiary in its character.

It is contented by the defendant, as its first defense to the action, that the necessary conclusion from these collated laws is that the remedy for injuries through negligence lies only in a criminal action in which the official criminally responsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the representative of the company accountable for not repairing the tract, and on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:

A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.

SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live with them.

xxx           xxx           xxx

Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or in the performance of their duties.

xxx           xxx           xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damages.

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His obligation therefore is one "not punished by the law " and falls under civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by the defendant, that would rob some of these articles of effect, would shut out litigants their will from the civil courts, would make the assertion of their rights dependent upon the selection for prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always stood alone, such a construction would be unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was pending the civil was suspended. According to article 112, the penal action once started, the civil remedy should be sought therewith, unless it had been waived by the party injured or been expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that could be enforced by only on private complaint, the penal action thereunder should be extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citations of these articles suffices to show that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly provided by law. Where an individual is civilly liable for a negligent act or omission, it is not required that the inured party should seek out a third person criminally liable whose prosecution must be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of criminal actions against his employees only while they are process of prosecution, or in so far as they determinate the existence of the criminal act from which liability arises, and his obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by election of the injured person. Inasmuch as no criminal in question, the provisions of the Penal Code can not affect this action. This construction renders it unnecessary to finally determine here whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or has been abrogated by the American civil and criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from negligence punished by the law, within the meaning of articles 1092 and 1093. More than this, however, it can not be said to fall within the class of acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those and growing out of preexisting duties of the parties to one another. But were relations already formed give rise to duties, whether springing from contract or quasi

contract, then breaches of those duties are subject to articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be found in the consequences of a railway accident due to defective machinery supplied by the employer. His liability to his employee would arise out of the contract of employment, that to the passengers out of the contract for passage. while that to that injured bystander would originate in the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood in two difference senses; either as culpa, substantive and independent, which on account of its origin arises in an obligation between two persons not formerly bound by any other obligation; or as an incident in the performance of an obligation; or as already existed, which can not be presumed to exist without the other, and which increases the liability arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a real source of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted to it, it is logical to presume that the reference contained in article 1093 is limited thereto and that it does not extend to those provisions relating to the other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be somewhat inexactly described as contractual and extra-contractual, the letter being the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900, throws uncertain light on the relation between master and workman. Moved by the quick industrial development of their people, the courts of France early applied to the subject the principles common to the law of both countries, which are lucidly discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery of a third basis for liability in an article of he French Code making the possessor of any object answerable for damage done by it while in his charge. Our law having no counterpart of this article, applicable to every kind of object, we need consider neither the theory growing out of it nor that of "professional risk" more recently imposed by express legislation, but rather adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual obligation. This contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties, binds the employer to provide safe appliances for the use of the employee, thus closely corresponding to English and American Law. On these principles it was the duty of the defendant to build and to maintain its track in reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it failed in its duty, otherwise the accident could not have occurred; consequently the negligence of the defendant is established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his employment and, as such, one assumed by him. It is evident that this can not be the case if the occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused upon the ground that the negligence

leading to the accident was that of a fellow-servant of the injured man. It is not apparent to us that the intervention of a third person can relieve the defendant from the performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in the case of Prescottvs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law." The American States which applied it appear to be gradually getting rid of it; for instance, the New York State legislature of 1906 did away with it in respect to railroad companies, and had in hand a scheme for its total abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing to the accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars is he charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either before or behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty. There is nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us, rather than a fair inference from the testimony. While the method of construction may have been known to the men who had helped build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A man may easily walk along a railway without perceiving a displacement of the underlying timbers. The foreman testified that he knew the state of the track on the day of the accident and that it was then in good condition, and one Danridge, a witness for the defendant, working on the same job, swore that he never noticed the depression in the track and never saw any bad place in it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman who neither promised nor refused to repair it. His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe American rule. On this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower than then other" and "it does not appear in this case that the plaintiff knew before the accident occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us, because not "plainly and manifestly against the weight of evidence," as those words of section 497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United States in the De la Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific. While the judge remarks that the evidence does not justify the finding that the car was pulled by means of a rope attached to the front end or to the rails upon it, and further that the circumstances in evidence make it clear that the persons necessary to operate the car could not walk upon the plank between the rails and that, therefore, it was necessary for the employees moving it to get hold upon it as best they could, there is no specific finding upon the instruction given by the defendant to its employees to walk only upon the planks, nor upon the necessity of the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore the findings of the judge below leave the conduct of the plaintiff in walking along the side of the loaded car, upon the open ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way, but were expressly directed by the foreman to do so, both the officers of the company and three of the workmen testify that there was a general prohibition frequently made known to all the gang against walking by the side of the car, and the foreman swears that he repeated the prohibition before the starting of this particular load. On this contradiction of proof we think that the preponderance is in favor of the defendant's contention to the extent of the general order being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause. This conclusion presents sharply the question, What effect is to be given such an act of contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence was slight as compared with that of the defendant, and some others have accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his responsibility for the accident, yet the overwhelming weight of adjudication establishes the principle in American jurisprudence that any negligence, however slight, on the part of the person injured which is one of the causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the United States thus authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury complained of, yet an action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but when analyzed they prove to have been decided either upon the point that he was not negligent or that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was due to  casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and killed by the shock following the backing up of the engine. It was held that the management of the train and engine being in conformity with proper rules of the company, showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888 (64Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that the defendant was not negligent, because expressly relieved by royal order from the common obligation imposed by the police law of maintaining a guard at the road crossing; the other, because the act of the deceased in driving over level ground with unobstructed view in front of a train running at speed, with the engine whistle blowing was the determining cause of the accident. It is plain that the train was doing nothing but what it had a right to do and that the only fault lay with the injured man. His negligence was not contributory, it was sole, and was of such an efficient nature that without it no catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining damages was not free from contributory negligence; for instance, the decision of the 14th of December, 1894

(76Jurisprudencia Civil, No. 134), in which the owner of a building was held liable for not furnishing protection to workmen engaged in hanging out flags, when the latter must have perceived beforehand the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed to his injury as one of its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of the victim did not civilly relieve the person without whose fault the accident could not have happened, but that the contributory negligence of the injured man had the effect only of reducing the damages. The same principle was applied in the case of Recullet, November 10, 1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now embodied in a code following the Code Napoleon, a practice in accord with that of France is laid down in many cases collected in the annotations to article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals, the highest authority in the Dominion of Canada on points of French law, held that contributory negligence did not exonerate the defendants whose fault had been the immediate cause of the accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts have been overruled by appellate tribunals made up of common law judges drawn from other provinces, who have preferred to impose uniformally throughout the Dominion the English theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil law. Elsewhere we find this practice embodied in legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person injured or in the part of some one else, the indemnification shall be reduced in the first case, and in the second case it shall be appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the accident shall stand his damages in proportion to his fault, but when that proportion is incapable of ascertainment, he shall share the liability equally with the person principally responsible. The principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are derived from the civil law, common fault in cases of collision have been disposed of not on the ground of contradictor negligence, but on that of equal loss, the fault of the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is entered in favor of the vessel sustaining the greater loss against the other for the excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of Commerce, article 827, makes each vessel for its own damage when both are the fault; this provision restricted to a single class of the maritime accidents, falls for short of a recognition of the principle of contributory negligence as understood in American Law, with which, indeed, it has little in common. This is a plain from other articles of the same code; for instance, article 829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the civil action of the owner against the person liable for the damage is reserved, as well as the criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the parties, appears to have grown out the original method of trial by jury, which rendered difficult a nice balancing of responsibilities and which demanded an inflexible standard as a safeguard against too ready symphaty for the injured. It was assumed that an exact measure of several concurring faults was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an action against the other, is, not the wrong of the one is set off against the wrong of the other; it that the law can not measure how much of the damage suffered is attributable to the plaintiff's own fault. If he were allowed to recover, it might be that he would obtain from the other party compensation for hiss own misconduct. (Heil vs.Glanding, 42 Penn. St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law has no scales to determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial revision of damages by the courts. It appears to us that the control by the court of the subject matter may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits of the litigants through the practice of offsetting their respective responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and counter stress of novel schemers of legislation, we find the theory of damages laid down in the judgment the most consistent with the history and the principals of our law in these Islands and with its logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing under review was the displacement of the crosspiece or the failure to replace it. this produced the event giving occasion for damages — that is, the shinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter let the case be remanded to the court below for proper action. So ordered.

Arellano, C.J. Torres and Mapa, JJ., concur.

Separate Opinions

WILLARD, J., dissenting:

The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own evidence. He testified, among other things, as follows:

Q.       Now, describe the best you can the character of the track that ran from the place where you loaded the irons from the barge up to the point where you unloaded them on the ground.

A.       — Well, it was pretty bad character.

xxx           xxx           xxx

Q.       And you were familiar with the track before that its construction?

A.       Familiar with what?

Q.       Well, you have described it here to the court.

A.       Oh, yes; I knew the condition of the track.

Q.       You knew its conditions as you have described it here at the time you were working around there?

A.       Yes, sir.

xxx           xxx           xxx

Q.       And while operating it from the side it was necessary for you to step from board to board on the cross-ties which extended out over the stringers?

A.       Yes, sir.

Q.       And these were very of irregular shape, were they not?

A.       They were in pretty bad condition.

xxx           xxx           xxx

Q.       And it was not safe to walk along on the outside of these crosspieces?

A.       It was safe if the car stayed on the track. We didn't try to hold the load on. We tried to hold the car back, keep it from going too fast, because we knew the track was in bad condition just here, and going down too fast we could be liable to run off most any time.

Q.       You knew the track was in bad condition when you got hold?

A.       Sure, it was in bad condition.

xxx           xxx           xxx

Q.       And the accident took place at that point where you believed it to be so dangerous?

A.       Yes, sir.

Q.       But you knew it was dangerous?

A.       Why certainly, anybody could see it; but a workingman had to work in those days or get arrested for a vag here in Manila.

The court below, while it found that the plaintiff knew in a general way of the bad condition of the track, found that he was not informed of the exact cause of the accident, namely, the washing away of the large crosspiece laid upon the ground or placed upon the posts as the foundation upon which the stripers rested. This finding of fact to my mind is plainly and manifestly against the weight of the evidence. Ellis, a witness for the plaintiff, testified that on the morning of the accident he called the attention of McKenna, the foreman, to the defective condition of the track at his precise point where the accident happened. His testimony in part is as follows:

A.       I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it would it. He said, you keep on fishing around here for fish plates and you will be fishing for another job the first thing you know." He says, "You see to much."

xxx           xxx           xxx

Q.       Who else was present at the time you had this conversation with Mr. McKenna?

A.       Well, at that conversation as far as I can remember, we were all walking down the track and I know that McCoy and Mr. Blakes was along at the time. I remember them two, but we were all walking down the track in a bunch, but I disremember them.

xxx           xxx           xxx

Q.       Was that the exact language that you used, that you wanted some fish plates put on?

A.       No, sir: I told him to look at that track. I says get some fish plates. I says if there was any fish plates we would fix that.

Q.       What did the fish plates have to do with that?

A.       It would have strengthened that joint.

Q.       Why didn't you put the 8 by 8 which was washed crossways in place?

A. That would have been taken the raising of the track and digging out along this upright piece and then putting it up again.

The plaintiff himself testified that he was present with Ellis at the time this conversation was had with McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing directly over the place where the accident happened later in the day. The accident was caused, as the court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course see the ground and the entire construction of the road, including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these stringers, and the rails placed on the ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was out of place.

If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly apparent even than it would appear from the testimony of the defendant's witnesses. According to the plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis testified that the reason why they did not put the 8 by 8 back in its place was because that would have required the raising up of the track and digging out along this upright piece and then putting it up again.

It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the exact condition of the track and was informed and knew of the defect which caused the accident. There was no promise on the part of McKenna to repair the track.

Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he knew that he would be injured by the falling of the rails from the car when they reached this point in the track where the two stringers were without any support of their ends. He either should have refused to work at all or he should have placed himself behind the car, on the other side of it, or in front of it, drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover.

It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no defense under the law in force in these Islands. To this proposition I can not agree. The liability of the defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.

In order to impose such liability upon the defendant, it must appear that its negligence caused the accident. The reason why contradictory negligence on the part of the plaintiff is a defense in this class of cases is that the negligence of the defendant did not alone cause the accident. If nothing but that negligence had existed, the accident would not have happened and, as I understand it, in every case in which contradictory negligence is a defense it is made so because the negligence of the plaintiff is the cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not have happened, although the defendant was also negligent. In other words, the negligence of the defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.

There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire." (Digest, book, 50, tit. 17, rule 203.)

The partidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, partida 3.)

And they even said that when a man received an injury through his own acts, the grievance should be against himself and not against another. (Law 2, tit. 7, partida 2.)

In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March, 1876, and the 6th of October, 1882. These cases do not throw much light upon the subject. The judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court of Spain said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and the injury thereby caused there exists the relation of cause and effect; but in the injury caused should not be the result of acts or omissions of a third party,

the latter has no obligation to repair the same, even though such acts or omissions were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of the injured person party himself.

Found the reasons above stated, and the court below having found that the death of the deceased was due to his own imprudence, and not therefore due to the absence of a guard at the grade crossing where the accident occurred, it seems clear that court in acquitting the railroad company of the complaint filed by the widow did not violate the provisions of the aforesaid article of the Civil Code.

For the same reason, although the authority granted to the railroad company to open the grade crossing without a special guard was nullified by the subsequent promulgation of the railroad police law and the regulations for the execution of the same, the result would be identical, leaving one of the grounds upon which the judgment of acquittal is based, to wit, that the accident was caused by the imprudence of the injured party himself, unaffected.

It appears that the accident in this case took place at a grade crossing where, according to the claim of the plaintiff, it was the duty of the railroad company to maintain husband was injured by a train at this crossing, his negligence contributing to the injury according to the ruling of the court below. This judgment, then, amounts to a holding that a contributory negligence is a defense according to the law of Spain. (See also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia Civil.)

Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce there is found a distinct declaration upon it in reference to damages caused by collission at sea. Article 827 of the Code of Commerce is as follows:

If both vessels may be blamed for the collission, each one shall for liable for his own damages, and both shall jointly responsible for the loss and damages suffered to their cargoes.

That article is an express recognition of the fact that in collision cases contributory negligence is a defense,

I do not think that this court is justified in view of the Roman law, of the provisions of the Partidas, of the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absence of any declaration upon the subject in the Civil Code, in saying that it was the intention rule announced in the majority opinion, a rule dimetrically opposed to that put in force by the Code of Commerce.

The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory negligence is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be necessary in accordance with the provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-30741             January 30, 1930

TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-appellants, vs.J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT, LTD., defendants-appellee.

Kapunan and Kapunan for appellants.Camus and Delgado for appellees.

MALCOLM, J.:

The parents of the five-year old child, Purificacion Bernal, appeal from a judgment of the Court of First Instance of Leyte, which denied them P15,000 damages from J.V. House and the Tacloban Electric & Ice Plant, Ltd., for the death of the child as a consequence of burns alleged to have been caused by the fault and negligence of the defendants.

The salient facts as found by the trial judge are the following:

On the evening of April 10, 1925, the procession of Holy Friday was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came from another municipality to attend the religious celebration. After the procession was over, the woman and her daughter, accompanied by two other persons by the names of Fausto and Elias, passed along a public street named Gran Capitan. The little girl was allowed to get a short distance in advance of her mother and her friends. When in front of the offices of the Tacloban Electric & Ice Plant, Ltd., and automobile appeared from the opposite direction which so frightened the child that she turned to run, with the result that she fell into the street gutter. At that time there was hot water in this gutter or ditch coming from the Electric Ice Plant of J.V. House. When the mother and her companions reached the child, they found her face downward in the hot water. Her clothes were immediately removed and, then covered with a garment, the girl was taken to the provincial hospital. There she was attended by the resident physician, Dr. Victoriano A. Benitez. Despite his efforts, the child died that same night at 11:40 o'clock.

Dr. Benitez, who, of course, was in a better position than any one to know the cause of the death, and who had no reason to depart from the true facts, certified that the cause of death was "Burns, 3rd Degree, whole Body", and that the contributory causes were "Congestion of the Brain and visceras of the chest & abdomen". The same physician in his general record in the Leyte Hospital for this patient, under diagnosis in full, stated: "Burned 3rd Degree, whole body". The treatment record of the attending nurse was much to the same effect.

The defense was that the hot water was permitted to flow down the side of the street Gran Captain with the knowledge and consent of the authorities; that the cause of death was other than the hot water; and that in the death the plaintiffs contributed by their own fault and negligence. The trial judge, however, after examination of the evidence presented by the defendants, failed to sustain their theory of the case, except as to the last mentioned special defense. We are shown no good reason for the departing from the conclusion of the trial judge to the effect that the sudden death of the child Purification Bernal was due principally to the nervous shock and organic calefaction produced by the extensive burns from the hot water. "The danger from burns is proportional rather to the extent of surface involved than to the depth of the burn". (Wharton & Stille's Medical Jurisprudence, vol. 3, p. 263). The same authority continues. "Burns of the first degree,

covering two-thirds of the body surface, are rarely recovered from. . . . Children seem especially susceptible to the effect of burns." (Pp. 263, 264).

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order the dismissal of the action because of the contributory negligence of the plaintiffs. It is from this point that a majority of the court depart from the stand taken by the trial judge. The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the religious procession was held. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water. The doctrines announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The contributory negligence of the child and her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result in reduction of the damages.

Having reached the conclusion that liability exists, we next turn to discover who can recover damages for the obligation, and against whom the action will lie. The plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of Purificacion Bernal and the former was the natural father, who had never legally recognized his child. The daughter lived with the mother, and presumably was supported by her. Under these facts, recovery should be permitted the mother but not the father. As to the defendants, they are J.V. House and the Tacloban Electric & Ice Plant, Ltd., J.V. House was granted a franchise by Act No. 2700 of the Philippine Legislature approved on March 9, 1917. He only transferred this franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926, that is, nearly a year after the death of the child Purificacion Bernal. Under these facts, J.V. House is solely responsible.

Counsel for appellees point out that there is no satisfactory proof to establish the pecuniary loss. That is true. But in cases of this character the law presumes a loss because of the impossibility of exact computation. There is not enough money in the entire world to compensate a mother for the death of her child. In criminal cases, the rule has been to allow as a matter of course P1,000 as indemnity to the heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil., 821), which in many respects is on all fours with the case at bar, the same amount of P1,000 was allowed the mother of the dead boy eight or nine years of age. The same criterion will have to be followed in this instance.

The result will, therefore, be to accept the findings of fact made by the trial judge; to set aside the legal deductions flowing from those facts; to hold that the death of the child Purificacion Bernal was the result of fault and negligence in permitting hot water to flow through the public streets, there to endanger the lives of passers-by who were unfortunately enough to fall into it; to rule that the proper plaintiff is the mother Fortunata Enverso and not the natural father Tomas Bernal; to likewise rule that the person responsible to the plaintiff is J.V. House and not the entity the Tacloban Electric & Ice Plant, Ltd.; and finally to adjudge that the amount of recovery, without the tendering of special proof, should be fixed, as in other cases, at P1,000.

Concordant with the pronouncements just made, the judgment appealed from shall in part be reversed and in the court of origin another judgment shall issue in favor of Fortunata Enverso and against J.V. House for the amount of P1,000, and for the costs of both instances.

FIRST DIVISION

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.

D E C I S I O N

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June 1996 decision[1] of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution[2]denying their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorneys fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the stores branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the stores gift-wrapping counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor.[3]

ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old.[4]

The cause of her death was attributed to the injuries she sustained. The provisional medical certificate[5] issued by ZHIENETHs attending doctor described the extent of her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral expenses[6] which they had incurred.Petitioners refused to pay. Consequently, private respondents filed a complaint for damages,

docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages,P300,000 for moral damages, P20,000 for attorneys fees and an unspecified amount for loss of income and exemplary damages.

In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and countered that the complaint was malicious for which they suffered besmirched reputation and mental anguish.They sought the dismissal of the complaint and an award of moral and exemplary damages and attorneys fees in their favor.

In its decision[7] the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private respondents witnesses testified on how the counter fell. The trial court also held that CRISELDAs negligence contributed to ZHIENETHs accident.

In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance.[8] The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.

Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liable for the death of ZHIENETH.

Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also, the testimony of one of the stores former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied petitioners theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, [N]othing, I did not come near the counter and the counter just fell on me. [9] Accordingly, Gonzales testimony on ZHIENETHs spontaneous declaration should not only be considered as part of res gestae but also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.

Finally, private respondents vigorously maintained that the proximate cause of ZHIENETHs death, was petitioners negligence in failing to institute measures to have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETHs death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and

blameless. Further, petitioners adverted to the trial courts rejection of Gonzales testimony as unworthy of credence.

As to private respondents claim that the counter should have been nailed to the ground, petitioners justified that it was not necessary. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they had exercised due diligence on the matter. In fact, the criminal case[10] for homicide through simple negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor.

The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found that petitioners were negligent in maintaining a structurally dangerous counter.The counter was shaped like an inverted L[11] with a top wider than the base. It was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow base.  Thus, the counter was defective, unstable and dangerous; a downward pressure on the overhanging portion or a push from the front could cause the counter to fall. Two former employees of petitioners had already previously brought to the attention of the management the danger the counter could cause. But the latter ignored their concern. The Court of Appeals faulted the petitioners for this omission, and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for some time without a prior incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private respondents as evidenced by the hospital's statement of account.[12]It denied an award for funeral expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH.

We quote the dispositive portion of the assailed decision,[13] thus:

WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following:

1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27 April 1984;

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorneys fees; and

5. Costs.

Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals resolution[14] of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals decision and the reinstatement of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. They stress that since the action was based on tort,

any finding of negligence on the part of the private respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was ZHIENETHs act of clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDAs contributory negligence, through her failure to provide the proper care and attention to her child while inside the store, nullified private respondents claim for damages. It is also for these reasons that parents are made accountable for the damage or injury inflicted on others by their minor children. Under these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated from Syvels at the time he testified; hence, his testimony might have been tarnished by ill-feelings against them.

For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the hospitals emergency room should receive credence; and finally, ZHIENETHs part of the res gestae declaration that she did nothing to cause the heavy structure to fall on her should be considered as the correct version of the gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.

An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant.[15] It is a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens.[16]

On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.[17] Negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.[18]

Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence.[19]

The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith,[20] thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.[21]

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs death could only be attributed to negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and ZHIENETH to the hospital:

Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?

A At the emergency room we were all surrounding the child. And when the doctor asked the child what did you do, the child said nothing, I did not come near the counter and the counter just fell on me.

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.[22]

This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions.[23] All that is required for their admissibility as part of the res gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life.  We therefore accord credence to Gonzales testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counters base.

Gonzales earlier testimony on petitioners insistence to keep and maintain the structurally unstable gift-wrapping counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter and since it is not nailed and it was only standing on the floor, it was shaky.

xxx

Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9 1983?

A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy.

xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic]  shaky and since Mr. Maat is fond of putting display decorations on tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he told me better inform also the company about it. And since the company did not do anything about the counter, so I also did not do anything about the counter.[24] [Emphasis supplied]

Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:

Q Will you please described [sic] to the honorable Court the counter where you were assigned in January 1983?

xxx

A That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was shaky.

Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please describe that to the honorable Court?

A I told her that the counter wrapper [sic]  is really in good [sic] condition; it was shaky.  I told her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?

A She told me Why do you have to teach me. You are only my subordinate and you are to teach me? And she even got angry at me when I told her that.

xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to that (sic)

xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the accident happened.[25] [Emphasis supplied]

Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the stores employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the formers testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarras testimonies were blemished by ill feelings against petitioners since they (Gonzales and Guevarra) were already separated from the company at the time their testimonies were offered in court was but mere speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses.[26] However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect the result of the case.[27] In the instant case, petitioners failed to bring their claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence.  In his book,[28]former Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-

delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept petitioners theory that the counter was stable and sturdy. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence[29]on record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted L, the counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its base was not secured.[30]

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to the latters hand.[31] CRISELDA momentarily released the childs hand from her clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter was just four meters away from CRISELDA.[32] The time and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

Republic of the Philippines

Supreme CourtManila THIRD DIVISION  NATIONAL POWER G.R. No. 165969CORPORATION,

Petitioner, Present:YNARES-SANTIAGO, J.,

Chairperson,AUSTRIA-MARTINEZ,

- versus - CHICO-NAZARIO,NACHURA, andREYES, JJ.

 Promulgated:HEIRS OF NOBLE CASIONAN,

Respondents. November 27, 2008 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N  REYES, R.T., J.:  

PETITIONING power company pleads for mitigation of awarded damages on ground of contributory

negligence. But is the victim in this case partly to blame for his electrocution and eventual demise?

 

This is a review on certiorari of the Decision[1] of the Court of Appeals (CA) which found the National Power

Corporation (NPC) liable for damages for the death of Noble Casionan due to electrocution from the

companys high tension transmission lines.

 

 

The Facts

 

The facts, as found by the trial court are as follows:

 

Respondents are the parents of Noble Casionan, 19 years old at the time of the incident that claimed

his life on June 27, 1995. He would have turned 20 years of age on November 9 of that year. Noble was

originally from Cervantes, Ilocos Sur. He worked as a pocket miner in Dalicno, Ampucao, Itogon, Benguet.

 

A trail leading to Sangilo, Itogon, existed in Dalicno and this trail was regularly used by members of

the community. Sometime in the 1970s, petitioner NPC installed high-tension electrical transmission lines of

69 kilovolts (KV) traversing the trail. Eventually, some of the transmission lines

sagged and dangled reducing their distance from the ground to only about eight to ten feet. This posed a

great threat to passersby who were exposed to the danger of electrocution especially during the wet season.

 

As early as 1991, the leaders of Ampucao, Itogon made verbal and written requests for NPC to

institute safety measures to protect users of the trail from their high tension wires. On June 18,

1991 and February 11, 1993, Pablo and Pedro Ngaosie, elders of the community, wrote Engr. Paterno

Banayot, Area Manager of NPC, to make immediate and appropriate repairs of the high tension wires. They

reiterated the danger it posed to small-scale miners especially during the wet season. They related an

incident where one boy was nearly electrocuted.

 

In a letter dated March 1, 1995, Engr. Banayot informed Itogon Mayor Cresencio Pacalso

that NPC had installed nine additional poles on their Beckel-Philex 60 KV line.They likewise identified a

possible rerouting scheme with an estimated total cost of 1.7 million pesos to improve the distance from its

deteriorating lines to the ground.

 

On June 27, 1995, Noble and his co-pocket miner, Melchor Jimenez, were at Dalicno. They cut two

bamboo poles for their pocket mining. One was 18 to 19 feet long and the other was 14 feet long. Each man

carried one pole horizontally on his shoulder: Noble carried the shorter pole while Melchor carried the longer

pole. Noble walked ahead as both passed through the trail underneath the NPC high tension transmission

lines on their way to their work place.

 

As Noble was going uphill and turning left on a curve, the tip of the bamboo pole he was carrying

touched one of the dangling high tension wires. Melchor, who was walking behind him, narrated that he

heard a buzzing sound when the tip of Nobles pole touched the wire for only about one or two

seconds. Thereafter, he saw Noble fall to the ground. Melchor rushed to Noble and shook him but the latter

was already dead. Their co-workers heard Melchors shout for help and together they brought the body of

Noble to their camp.

 

A post-mortem examination by Dra. Ignacia Reyes Ciriaco, Municipal Health Officer of Itogon,

Benguet, determined the cause of death to be cardiac arrest, secondary to ventricular fibulation, secondary to

electrocution.[2] She also observed a small burned area in the middle right finger of the victim.

 

Police investigators who visited the site of the incident confirmed that portions of the high tension

wires above the trail hung very low, just about eight to ten feet above theground. They noted that the

residents, school children, and pocket miners usually used the trail and had to pass directly underneath the

wires. The trail was the only viable way since the other side was a precipice. In addition, they did not see any

danger warning signs installed in the trail.

 

The elders and leaders of the community, through Mayor Cresencio Pacalso, informed the General

Manager of NPC in Itogon of the incident. After learning of the electrocution, NPC repaired the dangling and

sagging transmission lines and put up warning signs around the area.

 

Consequently, the heirs of the deceased Noble filed a claim for damages against the NPC before the

Regional Trial Court (RTC) in Benguet. In its answer, NPC denied being negligent in maintaining the safety of

the high tension transmission lines. It averred that there were danger and warning signs installed but these

were stolen by children.Excavations were also made to increase the necessary clearance from the ground to

about 17 to 18 feet but some towers or poles sank due to pocket mining in the area.

 

At the trial, NPC witnesses testified that the cause of death could not have been electrocution because

the victim did not suffer extensive burns despite the strong 69 KV carried by the transmission lines. NPC

argued that if Noble did die by electrocution, it was due to his own negligence. The company counter-claimed

for attorneys fees and cost of litigation.

 

RTC Disposition

 

On February 17, 1998, the RTC decided in favor of respondents. The fallo of its decision reads:

 WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the

defendant NPC as follows: 1. Declaring defendant NPC guilty of Negligence (Quasi-Delict) in connection with

the death of Noble Casionan; 2. Ordering NPC as a consequence of its negligence, to pay the plaintiffs Jose and

Linda Casionan, as heirs of the deceased, Noble Casionan, the following Damages: a. P50,000.00 as indemnity for the death of their son Noble Casionan; b. P100,000.00 as moral damages; c. P50,000.00 as exemplary damages; 

d. P52,277.50 as actual damages incurred for the expenses of burial and wake in connection with the death of Noble Casionan;

 e. P720,000.00 as the loss of unearned income; and f. P20,000.00 as attorneys fees and the cost of suit; and

 3. Dismissing the counter claim of the NPC for lack of merit.[3]

 

The RTC gave more credence to the testimony of witnesses for respondents than those of NPC who

were not actually present at the time of the incident. The trial court observed that witnesses for NPC were

biased witnesses because they were all employed by the company, except for the witness from the

Department of Environment and Natural Resources (DENR). The RTC found:

 Melchor Jimenez was very vivid in his account. He declared that he and Noble

Casionan cut two bamboo poles, one 14 feet and the other about 18 feet. The shorter bamboo pole was carried by Noble Casionan and the longer bamboo pole was carried by him. And they walked along the trail underneath the transmission lines. He was following Noble Casionan. And when they were going uphill in the trail and Noble Casionan was to turn left in a curve, the bamboo pole of Casionan swung around and its tip at the back touched for one or two seconds or for a split moment the transmission line that was dangling and a buzzing sound was heard. And Casionan immediately fell dead and simply stopped breathing. What better account would there be than this? Melchor Jimenez was an eye witness as to how it all happened.[4] (Emphasis added)

 

The RTC ruled that the negligence of NPC in maintaining the high-tension wires was established by

preponderance of evidence. On this score, the RTC opined:

 

 2. On the matter of whether plaintiffs have a cause of action against defendant NPC,

obviously, they would have. x x x This negligence of the NPC was well established and cannot be denied because previous to this incident, the attention of NPC has already been called by several requests and demands in 1991, 1993 and 1995 by elders and leaders of the community in the area to the fact that their transmission lines were dangling and sagging and the clearance thereof from the line to the ground was only 8 to 10 feet and not within the standard clearance of 18 to 20 feet but no safety measures were taken. They did not even put danger and warning signs so as to warn persons passing underneath.[5] (Emphasis added)

 

Disagreeing with the ruling of the trial court, NPC elevated the case to the CA.  In its appeal, it argued that

the RTC erred in ruling that NPC was liable for Nobles death. Further,even assuming that Noble died of

electrocution, the RTC erred in not finding that he was guilty of contributory negligence and in awarding

excessive damages.

 

CA Disposition

 

On June 30, 2004, the CA promulgated its decision, disposing as follows:

 WHEREFORE, the appealed Decision is hereby AFFIRMED, with the MODIFICATION

that the amount of moral damages is REDUCED to Fifty Thousand Pesos (P50,000.00); and the award of attorneys fees in the sum of Twenty Thousand Pesos (P20,000.00) is DELETED.[6]

 

The CA sustained the findings of fact of the trial court but reduced the award of moral damages

from P100,000.00 to P50,000.00. The CA further disallowed the award of attorneys fees because the reason

for the award was not expressly stated in the body of the decision.

 

Issues

 

The following issues are presented for Our consideration: (i) Whether the award for damages should be

deleted in view of the contributory negligence of the victim; and (ii) Whether the award for unearned income,

exemplary, and moral damages should be deleted for lack of factual and legal bases.[7]

 

Our Ruling

 

I

 

That the victim Noble died from being electrocuted by the high-tension transmission wires of

petitioner is not contested by petitioner. We are, however, asked to delete or mitigate the damages awarded

by the trial and appellate courts in view of what petitioner alleges to be contributory negligence on the part of

the victim.

 

As a rule, only questions of law may be entertained on appeal by certiorari under Rule 45. The finding of

negligence on the part of petitioner by the trial court and affirmed by the CA is a question of fact which We

cannot pass upon since it would entail going into factual matters on which the finding of negligence was

based.[8] Corollary to this, the finding by both courts of the lack of contributory negligence on the part of the

victim is a factual issue which is deemed conclusive upon this Court absent any compelling reason for Us to

rule otherwise.

 

But even if We walk the extra mile, the finding of liability on the part of petitioner must stay.

 

Petitioner contends that the mere presence of the high tension wires above the trail did not cause the

victims death. Instead, it was Nobles negligent carrying of the bamboo pole that caused his death. It insists

that Noble was negligent when he allowed the bamboo pole he was carrying to touch the high tension

wires. This is especially true because other people traversing the trail have not been similarly electrocuted.

 

Petitioners contentions are absurd.

 

The sagging high tension wires were an accident waiting to happen. As established during trial,

the lines were sagging around 8 to 10 feet in violation of the required distance of 18 to 20 feet. If the

transmission lines were properly maintained by petitioner, the bamboo pole carried by Noble would not have

touched the wires. He would not have been electrocuted.

 

Petitioner cannot excuse itself from its failure to properly maintain the wires by attributing

negligence to the victim. In Ma-ao Sugar Central Co., Inc. v. Court of Appeals,[9] this Court held that the

responsibility of maintaining the rails for the purpose of preventing derailment accidents belonged to the

company. The company should not have been negligent in ascertaining that the rails were fully connected

than to wait until a life was lost due to an accident. Said the Court:

 In this petition, the respondent court is faulted for finding the petitioner guilty of

negligence notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing the deductions made by the trial court.

 Investigation of the accident revealed that the derailment of the locomotive was

caused by protruding rails which had come loose because they were not connected and fixed in place by fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 " thick which are attached to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could be removed only with special equipment, the fish plates that should have kept the rails aligned could not be found at the scene of the accident.

 There is no question that the maintenance of the rails, for the purpose, inter alia, of

preventing derailments, was the responsibility of the petitioner, and that this responsibility was not discharged. According to Jose Reyes, its own witness, who was in charge of the control and supervision of its train operations, cases of derailment in the milling district were frequent and there were even times when such derailments were reported every hour. The petitioner should therefore have taken more prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its negligence.[10]

 

Moreover, We find no contributory negligence on Nobles part.

 

Negligence is the failure to observe, for the protection of the interest of another person, that degree

of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers

injury.[11] On the other hand, contributory negligence is conduct on the part of the injured party,

contributing as a legal cause to the harm he has suffered, which falls below the standard which he is

required to conform for his own protection.[12] There is contributory negligence when the partys act

showed lack of ordinary care and foresight that such act could cause him harm or put his life in danger. [13] It is

an act or omission amounting to want of ordinary care on the part of the person injured which, concurring

with the defendants negligence, is the proximate cause of the injury.[14]

 

The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his

own injury should not be entitled to recover damages in full but must bear the consequences of his own

negligence.[15] If indeed there was contributory negligence on the part of the victim, then it is proper to reduce

the award for damages. This isin consonance with the Civil Code provision that liability will be mitigated in

consideration of the contributory negligence of the injured party. Article 2179 of the Civil Code is explicit on

this score:

 When the plaintiffs own negligence was the immediate and proximate cause of his

injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

 

In Ma-ao Sugar Central, it was held that to hold a person as having contributed to his injuries, it must

be shown that he performed an act that brought about his injuries in disregard of warnings or signs on an

impending danger to health and body. This Court held then that the victim was not guilty of contributory

negligence as there was no showing that the caboose where he was riding was a dangerous place and that he

recklessly dared to stay there despite warnings or signs of impending danger.[16]

 

In this case, the trail where Noble was electrocuted was regularly used by members of the community. There

were no warning signs to inform passersby of the impending danger to their lives should they accidentally

touch the high tension wires. Also, the trail was the only viable way from Dalicon to Itogon. Hence,

Noble should not be faulted for simply doing what was ordinary routine to other workers in the area.

 

Petitioner further faults the victim in engaging in pocket mining, which is prohibited by the DENR in the area.

 

In Aonuevo v. Court of Appeals,[17] this Court ruled that the violation of a statute is not sufficient to

hold that the violation was the proximate cause of the injury, unless the very injury that happened was

precisely what was intended to be prevented by the statute. In said case, the allegation of contributory

negligence on the part of the injured party who violated traffic regulations when he failed to register his

bicycle or install safety gadgets thereon was struck down. We quote:

 x x x  The bare fact that Villagracia was violating a municipal ordinance at the time of

the accident may have sufficiently established some degree of negligence on his part, but such negligence is without legal consequence unless it is shown that it was a contributing cause of

the injury.   If anything at all, it is but indicative of Villagracias failure in fulfilling his obligation to the municipal government, which would then be the proper party to initiate corrective action as a result.  But such failure alone is not determinative of Villagracias negligence in relation to the accident. Negligence is relative or comparative, dependent upon the situation of the parties and the degree of care and vigilance which the particular circumstances reasonably require. To determine if Villagracia was negligent, it is not sufficient to rely solely on the violations of the municipal ordinance, but imperative to examine Villagracias behavior in relation to the contemporaneous circumstances of the accident.

 x x x x

 Under American case law, the failures imputed on Villagracia are

not grievous enough so as to negate monetary relief.  In the absence of statutory requirement, one is not negligent as a matter of law for failing to equip a horn, bell, or other warning devise onto a bicycle. In most cases, the absence of proper lights on a bicycle does not constitute negligence as a matter of law but is a question for the jury whether the absence of proper lights played a causal part in producing a collision with a motorist. The absence of proper lights on a bicycle at night, as required by statute or ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is struck by a motorist as long as the absence of such lights was a proximate cause of the collision; however, the absence of such lights will not preclude or diminish recovery if the scene of the accident was well illuminated by street lights, if substitute lights were present which clearly rendered the bicyclist visible, if the motorist saw the bicycle in spite of the absence of lights thereon, or if the motorist would have been unable to see the bicycle even if it had been equipped with lights. A bicycle equipped with defective or ineffective brakes may support a finding of negligence barring or diminishing recovery by an injured bicyclist where such condition was a contributing cause of the accident.

 The above doctrines reveal a common thread.  The failure of the bicycle owner to

comply with accepted safety practices, whether or not imposed by ordinance or statute, is not sufficient to negate or mitigate recovery unless a causal connection is established between such failure and the injury sustained.  The principle likewise finds affirmation in Sanitary Steam, wherein we declared that the violation of a traffic statute must be shown as the proximate cause of the injury, or that it substantially contributed thereto. Aonuevo had the burden of clearly proving that the alleged negligence of Villagracia was the proximate or contributory cause of the latters injury.[18] (Emphasis added)

 

That the pocket miners were unlicensed was not a justification for petitioner to leave their

transmission lines dangling. We quote with approval the observation of the RTCon this matter:

 The claim of NPC that the pocket miners have no right to operate within the area of

Dalicno, Itogon, Benguet as there was no permit issued by DENR is beside the point. The fact is that there were not only pocket miners but also there were many residents in the area of Dalicno, Ampucao, Itogon, Benguet using the trail. These residents were using this trail underneath the transmission lines x x x. They were using this trail even before the transmission lines were installed in the 1970s by NPC. The pocket miners, although they have no permit to do pocket mining in the area, are also human beings who have to eke out a living in the only way they know how. The fact that they were not issued a permit by the DENR to do pocket mining is no justification for NPC to simply leave their transmission lines dangling or hanging 8 to 10 feet above the ground posing danger to the life and limb of everyone in said community. x x x[19] (Emphasis added)

 

In sum, the victim was not guilty of contributory negligence. Hence, petitioner is not entitled to a

mitigation of its liability.

 

II

 

We now determine the propriety of the awards for loss of unearned income, moral, and

exemplary damages.

 

From the testimony of the victims mother, it was duly established during trial that he was

earning P3,000.00 a month. To determine the compensable amount of lost earnings, We consider (1) the

number of years for which the victim would otherwise have lived (life expectancy); and (2) the rate of loss

sustained by the heirs of the deceased. Life expectancy is computed by applying the formula (2/3 x [80 - age

at death]) adopted in the American Expectancy Table of Mortality or the

Actuarial Combined ExperienceTable of Mortality. The second factor is computed by multiplying the life

expectancy by the net earnings of the deceased, i.e., the total earnings less expenses necessary in the creation

of such earnings or income and less living and other incidental expenses. The net earning is ordinarily

computed at fifty percent (50%) of the gross earnings. Thus, the formula used by this Court in computing loss

of earning capacity is: Net Earning Capacity = [2/3 x (80 age at time of death) x (gross annual income

reasonable and necessary living expenses)].[20]

 

We sustain the trial court computation of unearned income of the victim:

 x x x the loss of his unearned income can be computed as follows: two-thirds of 80

years, minus 20 years, times P36,000.00 per year, equals P1,440,000.00. This is because Noble Casionan, at the time of his death, was 20 years old and was healthy and strong. And, therefore, his life expectancy would normally reach up to 80 years old in accordance with the above formula illustrated in the aforesaid cases. Thus, Noble Casionan had 60 more years life expectancy since he was 20 years old at the time of his death on June 27, 1995. Two-thirds of 60 years times P36,000.00 since he was earning about P3,000.00 a month of P36,000.00 a year would be P1,440,000.00. However, in determining the unearned income, the basic concern is to determine the damages sustained by the heirs or dependents of the deceased Casionan. And here, the damages consist not of the full amount of his earnings but the support they would have received from the deceased had he not died as a consequence of the unlawful act of the NPC. x x x The amount recoverable is not the loss of the entire earnings but the loss of that portion of the earnings which the heirs would have received as support. Hence, from the amount of P1,440,000.00, a reasonable amount for the necessary expenses of Noble Casionan had he lived would be deducted. Following the ruling in People v. Quilaton, 205 SCRA 279, the Court deems that 50 percent of the gross earnings of the deceased of P1,440,000.00 should be deducted for his necessary expenses had he lived, thus leaving the other half of about P720,000.00 as the net earnings that would have gone for the support of his heirs. This is the unearned income of which the heirs were deprived of.[21]

 

In quasi delicts, exemplary damages are awarded where the offender was guilty of gross negligence.[22] Gross negligence has been defined to be the want or absence of even slight care or diligence as to amount

to a reckless disregard of the safety of person or property. It evinces a thoughtless disregard of consequences

without exerting any effort to avoid them.[23]

 

Petitioner demonstrated its disregard for the safety of the members of the community of Dalicno who

used the trail regularly when it failed to address the sagging high tension wires despite numerous previous

requests and warnings. It only exerted efforts to rectify the danger it posed after a death from electrocution

already occurred. Gross negligence was thus apparent, warranting the award of exemplary damages.

 

As to the award of moral damages, We sustain the CA reduction of the award.  Moral damages are

designed to compensate the claimant for actual injury suffered and not to impose a penalty on the

wrongdoer. It is not meant to enrich the complainant but to enable the injured party to obtain means to

obviate the moral suffering experience. Trial courts should guard against the award of exorbitant damages

lest they be accused of prejudice or corruption in their decision making.[24] We find that the CA correctly

reduced the award from P100,000.00 to P50,000.00.

 

As for the award for attorneys fees, well-settled is the rule that the reason for the award must be

discussed in the text of the courts decision and not only in the dispositive portion. [25] Except for the fallo, a

discussion on the reason for the award for attorneys fees was not included by the RTC in its decision. The CA

thus correctly disallowed it on appeal.

 

WHREFORE, the petition is DENIED and the appealed decision of the Court of Appeals AFFIRMED.

 SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 161946             November 14, 2008

MEDARDO AG. CADIENTE, petitioner, vs.BITHUEL MACAS, respondent.

D E C I S I O N

QUISUMBING, Acting C.J.:

For review on certiorari are the Decision1 dated September 16, 2002 and the Resolution2 dated December 18, 2003 of the Court of Appeals in CA-G.R. CV No. 64103, which affirmed the Decision3of the Regional Trial Court (RTC) of Davao City, Branch 10, in Civil Case No. 23,723-95.

The facts are undisputed.

Eyewitness Rosalinda Palero testified that on July 19, 1994, at about 4:00 p.m., at the intersection of Buhangin and San Vicente Streets in Davao City, 15-year old high school student Bithuel Macas, herein respondent, was standing on the shoulder of the road. She was about two and a half meters away from the respondent when he was bumped and run over by a Ford Fiera, driven by Chona C. Cimafranca. Rosalinda and another unidentified person immediately came to the respondent's rescue and told Cimafranca to take the victim to the hospital. Cimafranca rushed the respondent to the Davao Medical Center.

Dr. Hilario Diaz, the orthopedic surgeon who attended to the respondent, testified that the respondent suffered severe muscular and major vessel injuries, as well as open bone fractures in both thighs and other parts of his legs. In order to save his life, the surgeon had to amputate both legs up to the groins.4

Cimafranca had since absconded and disappeared. Records showed that the Ford Fiera was registered in the name of herein petitioner, Atty. Medardo Ag. Cadiente. However, Cadiente claimed that when the accident happened, he was no longer the owner of the Ford Fiera. He alleged that he sold the vehicle to Engr. Rogelio Jalipa on March 28, 1994,5 and turned over the Certificate of Registration and Official Receipt to Jalipa, with the understanding that the latter would be the one to cause the transfer of the registration.

The victim's father, Samuel Macas, filed a complaint6 for torts and damages against Cimafranca and Cadiente before the RTC of Davao City, Branch 10. Cadiente later filed a third-party complaint7against Jalipa.

In answer, Jalipa claimed that he was no longer the owner of the Ford Fiera at the time of the accident. He alleged that he sold the vehicle to Abraham Abubakar on June 20, 1994.8 He thus filed a fourth-party complaint9 against Abubakar.

After trial, the court ruled:

WHEREFORE, judgment is rendered in favor of the plaintiff declaring Atty. Medardo Ag. Cadiente and Engr. Rogelio Jalipa jointly and severally liable for damages to the plaintiff for their own negligence as stated above, and ordering them to indemnify the plaintiff jointly and severally as follows:

(a) P300,000.00 as compensatory damages for the permanent and almost total disability being suffered by him;

(b) P150,000.00 for moral damages;

(c) P18,982.85 as reimbursement of medical expenses;

(d) P30,000.00 for attorney's fees; and

(e) costs of suit.

SO ORDERED.10

On appeal, the Court of Appeals held that the findings of the trial court were in accordance with the established facts and was supported by the evidence on record. Thus, it decreed as follows:

WHEREFORE, premises considered, the instant appeal is DENIED and the decision of the Regional Trial Court of Davao City in Civil Case No. 23723-95 is hereby AFFIRMED.

SO ORDERED.11

From the aforequoted decision of the Court of Appeals and the subsequent denial of the motion for reconsideration, only Cadiente appealed to this Court.

The instant petition alleges that the Court of Appeals committed serious errors of law in affirming the decision of the trial court. Petitioner Cadiente raises the following as issues:

I.

WAS THERE … CONTRIBUTORY NEGLIGENCE ON THE PART OF THE INJURED PARTY?

II.

ARE BOTH DEFENDANT CADIENTE AND THIRD-PARTY DEFENDANT JOINTLY AND SEVERALLY LIABLE TO THE INJURED PARTY?

III.

THE HONORABLE COURT OF APPEAL[S] COMMIT[T]ED GRAVE LEGAL ERROR IN ORDERING DEFENDANT CADIENTE AND THIRD-PARTY DEFENDANT JALIPA JOINTLY AND SEVERALLY LIABLE.12

Essentially, the issues to be resolved are: (1) Whether there was contributory negligence on the part of the victim; and (2) whether the petitioner and third-party defendant Jalipa are jointly and severally liable to the victim.

The petitioner contends that the victim's negligence contributed to his own mishap. The petitioner theorizes that if witness Rosalinda Palero, who was only two and a half meters away from the victim, was not hit by the Ford Fiera, then the victim must have been so negligent as to be bumped and run over by the said vehicle.13

The petitioner further argues that having filed a third-party complaint against Jalipa, to whom he had sold the Ford Fiera, the Court of Appeals should have ordered the latter to reimburse him for any amount he would be made to pay the victim, instead of ordering him solidarily liable for damages.14

The respondent, for his part, counters that the immediate and proximate cause of the injuries he suffered was the recklessly driven Ford Fiera, which was registered in the petitioner's name. He insists that when he was hit by the vehicle, he was standing on the uncemented portion of the highway, which was exactly where pedestrians were supposed to be.15

The respondent stresses that as the registered owner of the Ford Fiera which figured in the accident, the petitioner is primarily liable for the injury caused by the said vehicle. He maintains that the alleged sale of the vehicle to Jalipa was tainted with irregularity, which indicated collusion between the petitioner and Jalipa.16

After a careful consideration of the parties' submissions, we find the petition without merit.

Article 2179 of the Civil Code provides:

When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full, but must proportionately bear the consequences of his own negligence. The defendant is thus held liable only for the damages actually caused by his negligence.17

In this case, records show that when the accident happened, the victim was standing on the shoulder, which was the uncemented portion of the highway. As noted by the trial court, the shoulder was intended for pedestrian use alone. Only stationary vehicles, such as those loading or unloading passengers may use the shoulder. Running vehicles are not supposed to pass through the said uncemented portion of the highway. However, the Ford Fiera in this case, without so much as slowing down, took off from the cemented part of the highway, inexplicably swerved to the shoulder, and recklessly bumped and ran over an innocent victim. The victim was just where he should be when the unfortunate event transpired.

Cimafranca, on the other hand, had no rightful business driving as recklessly as she did. The respondent cannot be expected to have foreseen that the Ford Fiera, erstwhile speeding along the cemented part of the highway would suddenly swerve to the shoulder, then bump and run him over. Thus, we are unable to accept the petitioner's contention that the respondent was negligent.

Coming now to the second and third issues, this Court has recently reiterated in PCI Leasing and Finance, Inc. v. UCPB General Insurance Co., Inc.,18 that the registered owner of any vehicle, even if he had already sold it to someone else, is primarily responsible to the public for whatever damage or injury the vehicle may cause. We explained,

…Were a registered owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially for the damage or injury done. A victim of recklessness on the public highways is usually without means to discover or identify the person actually causing the

injury or damage. He has no means other than by a recourse to the registration in the Motor Vehicles Office to determine who is the owner. The protection that the law aims to extend to him would become illusory were the registered owner given the opportunity to escape liability by disproving his ownership.19

In the case of Villanueva v. Domingo,20 we said that the policy behind vehicle registration is the easy identification of the owner who can be held responsible in case of accident, damage or injury caused by the vehicle. This is so as not to inconvenience or prejudice a third party injured by one whose identity cannot be secured.21

Therefore, since the Ford Fiera was still registered in the petitioner's name at the time when the misfortune took place, the petitioner cannot escape liability for the permanent injury it caused the respondent, who had since stopped schooling and is now forced to face life with nary but two remaining limbs.

WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated September 16, 2002 and Resolution dated December 18, 2003 of the Court of Appeals in CA-G.R. CV No. 64103 are hereby AFFIRMED. Costs against the petitioner.

SO ORDERED.